DULAT, J. - On the 2nd January, 1964, certain Income-tax Officer, duly authorised by the Commissioner of Income-tax, made a search of the premises of Messrs. Roshan Lal and Company and Messrs. Munshi Ram Roshan Lal, both of Bhatinda, and also the residence of Shri Roshan Lal, and seized certain documents believing that they were useful for certain proceedings initiated under the Income-tax Act. Three writ petitions under article 226 of the constitution (Civil Writs Nos. 225, 227 and 228 of 1964) have been presented to this court challenging the legality of the search and seizure of the documents, and, since the questions raised in all the petitions are identical, it is convenient to dispose of them together.
In the petitions a grievance was made that the searches had been made in a high-handed manner and arbitrary fashion and certain unnecessary documents were taken away which resulted in suspension of the petitioners business, but, in view of the returns filed and the affidavits sworn, this particular grievance has not been seriously pressed before us. It appears from the returns that the searches were made in an orderly manner and a complete inventory of the documents seized was prepared in the presence of the petitioners representatives and the lists prepared were signed by a number of apparently respectable persons of the locality who were present at the time of the searches. It is unnecessary, in the circumstances, to say anything more about that part of the case. It also appears clearly that the current books of the firms in question were not seized.
The main argument in support of the petitions proceeds on a legal ground Section 131 of the Income-tax Act, 1961, vests in an Income-tax Officer the powers of a civil court under the Code of Civil Procedure in respect of the discovery and inspection of documents and for compelling the production of books of accounts and other documents and issuing commissions to enforce the attendance of witnesses. It is obvious that without such powers the Income-tax Officer would hardly be able to proceed with any enquiry pending before him. Section 132 of the Act them says :-
'132. (1) Subject to any rules made in this behalf, any Income-tax Officer specially authorised by the Commissioner in this behalf may, -
(i) enter and search any building or place where he has reason to believe that any books of account or other documents which in his opinion will be useful for, or relevant to, any proceeding under this Act, may be found, and examine them, if found;
(ii) seize any such books of account or other documents;
(iii) place marks of identification on any such books of account or other documents or make or cause to be made extracts or copies therefrom;
(iv) make a note or an inventory of any articles or thing found in the course of any such search under this section which in his opinion will be useful for, or relevant to, any proceeding under this Act.'
Mr. Sibals main submission before us is that the object of the power given to an Income-tax Officer by section 131 is the same as the object of the power given to him under section 132 and the class of persons contemplated by sections 131 and 132 is identical, but that, since two different procedures are prescribed for obtaining the same result in respect of the same persons and one of the procedures is more drastic and less favorable to the affected party, it should be held that less favorable procedure contained in section 132 is hit by article 14 of the Constitution, being discriminatory in an arbitrary sense. The argument in short is that both these provisions are meant to apply to the same class of persons but it is left to the arbitrary will of the Income-tax Officer to proceed either in one way, that is, under section 131 or in a more drastic and less favorable manner under section 132 and, consequently, there is here, according to learned counsel, an unconstitutional discrimination which the law does not permit. Looking at the provisions, as they stand, it seems to me hardly possible to agree that the class of persons contemplated under section 131 is the same as that under section 132, and, although it is true that there is power in the Income-tax Officer given by section 131 to compel the production of any documents or books of account, it is hardly possible to agree that it is the same kind of power which vests in him under section 132. The two powers are entirely different and obviously meant to be exercised in two entirely different sets of circumstances. If the Income-tax Officer fells that a direction under section 131 for the production of documents or books of account would serve his purpose in a particular case, he can of course proceed under section 131 but there would be cases not difficult to imagine where the Income-tax Officer would be reasonably certain that no direction under section 131 would serve his purpose and it is obviously in such a contingency that he is authorised by section 132 to go to the premises in question after obtaining proper authority from the Commissioner of Income-tax and seize the documents after a search of the premises. Mr. Sibals suggestion strikes me as very naive indeed when he says that every assessee would be perfectly willing to produce the required documents and books of account if called upon to do so under section 131 and, therefore, the action authorised under section 132 in respect of a search and seizure is intended to apply to the same class of persons. It is obvious from every day experience that there are assesses who have no hesitation in obeying a direction under section 131 and produce the required books of account and other documents while there are others from whom such conduct is not to be expected and it is where an Income-tax Officer feels that the purpose would not be served by resorting to section 131 that he would take action under section 132. It, therefore, seems to me that the class of persons intended to be proceeded against under section 132 is entirely different from the class of persons contemplated under section 131, and the discrimination or the distinction between the two classes rests upon a perfectly understandable basis. To say, therefore, that the same set of persons are being provided for in the two sections of the Income-tax Act, namely, sections 131 and 132, seems to me wrong. Nor can it be seriously maintained that the power mentioned in section 132 is unnecessary. It appears, on the other hand, that for a proper investigation of certain matters such a power of search and seizure of documents is essential and has been wisely vested in appropriate persons by the legislature. Mr. Sibal relies mainly on a decision of the Assam High Court in Senairam Doongarmal Agency (P.) Ltd. v. K. E. Johnson, where by a majority of two against one that High Court held that the power given under the previous Income-tax Act of 1922 by section 37, sub-section (2), was ultra vires the Constitution. The provisions of section 37(2) of the previous Act corresponded to the provisions contained in section 132 of the present Act. The reasoning of the majority appears to have been the same as Mr. Sibals contention before us and he has largely borrowed his argument from that judgment. The learned Chief Justice of that court, however, was of contrary opinion and he found nothing unconstitutional in that provision. This very question was before then carefully considered by a Bench of three learned judges of the Calcutta High Court in Surajmall Nagarmall v. Commissioner of Income-tax, and it was held that section 37(2) of the Act of 1922 was neither constitutionally unreasonable nor arbitrary nor did it in any manner offend against any provision of the Constitution. The weight of authority is thus against Mr. Sibals argument. I find myself in respectful agreement with the view of the learned judges of the Calcutta High Court and the learned Chief Justice of the Assam High Court and am unable to accept the suggestion that in enacting section 132 of the Income-tax Act of 1961 the legislature in any manner offended any provision of the Constitution. The power given to an Income-tax Officer can be exercised only after proper authorisation from the Commissioner of Income-tax who will presumably do so only on being satisfied about certain matters, and a search of premises authorised by the Act is to be made according to an orderly procedure which has been indicated in the Act and the Rules. In my opinion, therefore, it is impossible to agree that any illegality was committed when action was taken in these cases under section 132 of the Income-tax Act, 1961.
Nothing else has been said in support of the petitions. As I have already mentioned, certain grievances were set down in the petitions but those turn out to be unsubstantial and largely unfounded. There is, therefore, no occasion for us to interfere with the action taken by the income-tax authorities or make any direction under article 226 of the Constitution. All the three petitions must, in the result, fail and I would dismiss them all, but considering everything, I would not burden the petitioners with costs.
P. C. PANDIT J. - I agree.