Skip to content


Manmohan Krishan Mahajan Vs. Commissioner of Income-tax and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writs Nos. 968, 969, 4894 and 4895 of 1975
Judge
Reported in[1977]107ITR420(P& H)
ActsIncome Tax Act, 1961 - Sections 132, 132(1) and 132(5)
AppellantManmohan Krishan Mahajan
RespondentCommissioner of Income-tax and ors.
Appellant Advocate Kuldip Singh, Adv.
Respondent Advocate D.N. Awasthy and; B.K. Jhingan, Advs.
Cases ReferredGemini Leather Stores v. Income
Excerpt:
.....but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the petitioners have challenged the legality of the search and seizure, inter alia, on the ground that the commissioner of income-tax could not have been satisfied within the meaning of section 132 of the act for coming to the statutory belief and the search having been conducted pursuant to a general warrant was illegal. these cases arc clearly distinguishable......no. 4895 of 1975 and shri jagmohan mahajan, petitioner in civil writ no. 119 of 1975 (jagmohan mahajan v. commissioner of income-tax ) decided on august 13, 1975. as a consequence of the search made, some jewellery and cash found from the premises in possession of the various petitioners were taken into possession under a memo prepared in accordance with law. the petitioners have challenged the legality of the search and seizure, inter alia, on the ground that the commissioner of income-tax could not have been satisfied within the meaning of section 132 of the act for coming to the statutory belief and the search having been conducted pursuant to a general warrant was illegal.3. in civil writ no. 119 of 1975 (jagmohan mahajan v. commissioner of income-tax ) decided by a division.....
Judgment:

1 This judgment will dispose of Civil Writs Nos. 968, 969, 4894 and 4895 of 1975. All the petitioners are residing in house No. 355, sector 9-D, Chandigarh, along with Shri Mulkh Raj Mahajan, advocate, Chandigarh. The petitioners in Civil Writs Nos. 4894 and 4895 of 1975 are the sons of Shri Mulkh Raj Mahajan and the petitioners in Civil Writs Nos. 968 and 969 of 1975 are the daughters-in-law of Shri Mulkh Raj Mahajan, advocate, Chandigarh.

2. The house of the latter was searched under a warrant of authorisation issued by the Commissioner of Income-tax, respondent No. 1, in exercise of the powers under Section 132 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'), on October 17, 1974. When the authorised officer wanted to search the premises of the petitioners they raided objections that the same could not be searched in the absence of relevant authorisations by the Commissioner of Income-tax. It is alleged that on receipt of these objections the authorised officer rang up Shri J. S. Dulat, the Inspecting Assistant Commissioner of Income-tax, who sent a warrant authorising the search of the premises occupied by Shri Manmohan Krishan Mahajan, petitioner in Civil Writ No. 4894 of 1975, Shri Brij Mohan Mahajan, petitioner in Civil Writ No. 4895 of 1975 and Shri Jagmohan Mahajan, petitioner in Civil Writ No. 119 of 1975 (Jagmohan Mahajan v. Commissioner of Income-tax ) decided on August 13, 1975. As a consequence of the search made, some jewellery and cash found from the premises in possession of the various petitioners were taken into possession under a memo prepared in accordance with law. The petitioners have challenged the legality of the search and seizure, inter alia, on the ground that the Commissioner of Income-tax could not have been satisfied within the meaning of Section 132 of the Act for coming to the statutory belief and the search having been conducted pursuant to a general warrant was illegal.

3. In Civil Writ No. 119 of 1975 (Jagmohan Mahajan v. Commissioner of Income-tax ) decided by a Division Bench of this court on August 13, 1975, the same warrant of authorisation which was utilized for the search of the premises occupied by Shri Jagmohan Mahajan was quashed with these observations (page 583):

'The case of petitioner No. 1's father was dealt with by respondent No. 1 along with the case of Shri H. L. Sibal. In that file, respondent No. 1 has not at all adverted to the case of the petitioner. From this fact alone, it is clear that respondent No. 1, even if it be assumed that he did authorise the initiation of action against the petitioners, acted in the absence of any information on the basis of which statutory belief could be formed. The search of the premises of the petitioners must be declared to be illegal on this ground alone and we order accordingly.'

4. It was also held by the Division Bench that issuance of general warrants or the warrants in which the name of a person whose premises were to be searched were not given, were illegal. The Division Bench also held that where the very basis under which action under Section 132(1) of the Act could be founded was missing, no enquiry under Section 132(5) of the Act could be held. In these circumstances, the cash and other items of jewellery recovered from the possession of Jagmohan Mahajan and another were ordered to be returned.

5. The same warrant of authorisation having been quashed in Civil Writ No. 119 of 1975 [Jagmohan Mahajan v. Commissioner of Income-tax ] we find no justification in withholding the relief prayed for by the present petitioners.

6. Mr. D. N. Awasthy, the learned counsel for the revenue, has argued that two important decisions were not considered by the Division Bench in Civil Writ No. 150 of 1975 [H. L. Sibal v. Commissioner of Income-tax [1976] 103 ITR 606]. These eases are Vashist Bhargava v. Income-tax Officer : [1975]99ITR148(Delhi) and Sakarlal Balabhai v. Income-tax Officer : [1975]100ITR97(Guj) . In Vashist Bhargava's case : [1975]99ITR148(Delhi) it was held that the Income-tax Officer could take action under Section 147(b) of the Act after receiving information from the Ministry of Law and the Revenue Audit. In Sakarlal Balabhai's case : [1975]100ITR97(Guj) action taken by the Income-tax Officer under Section 147(b) of the Act on the basis of report of valuation made by the executive engineer was held to be valid. These cases arc clearly distinguishable. The observations made by their Lordships of the Supreme Court in Gemini Leather Stores v. Income-tax Officer : [1975]100ITR1(SC) do fortify the view taken by the Division Bench of this court in Hira Lal Sibal's case [1976] 103 ITR 606, which we are bound to follow.

7. For the reasons mentioned above, we allow these petitions, quash thewarrant of authorisation on the basis of which the search of the petitioner'spremises was conducted and also hold that since there was no basis forinitiating action under Section 132(1) of the Act, it was not open to theauthorised officer to hold or to continue with any enquiry against the petitioners under Section 132(5) of the Act. An order under Section 132(5) of the Act, if any, passed by the Income-tax Officer against any of the petitioners shall also stand quashed. The money, jewellery and other articles recovered from the possession of the petitioners will be returned to them preferably within three weeks.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //