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Smt. Sita Devi Vs. Commissioner of Income-tax and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 5307 of 1975
Judge
Reported in(1979)12CTR(P& H)108; [1980]122ITR105(P& H)
ActsIncome Tax Act, 1961 - Sections 132(1)
AppellantSmt. Sita Devi
RespondentCommissioner of Income-tax and ors.
Appellant Advocate Kuldip Singh, Adv.
Respondent Advocate D.N. Awasthy, Adv.
Excerpt:
.....been found and recovered whether after opening the safe or digging the earth in pursuance of the search warrants against the petitioner's sons who were living in the same premises with her before the search and seizure warrants in her name for search against her were issued by respondent no. 9. in the present case, the respondents avoided the circuitous route and acted honestly by placing the information gathered by them during the search and seizure of the premises of the petitioner, which they were authorised to search, before the cit who, on being satisfied in terms'of section 132(1) (b) and (c), issued the warrants authorising them to seize the assets discovered during the search in their hands. in my opinion, no fault can be found with the search of the premises which led to the..........no. 1, the cit, patiala, on being allegedly satisfied in terms of section 132(1) of the act issued search and seizure warrants authorising respondents nos. 2 and 3 to effect the search of the aforesaid two sons of the. petitioner and the premises mentioned in the search warrants being used by them as their residential house. during the course of search in pursuance of the said warrants and after, the aforesaid two sons of the petitioner as also the petitioner had stated that no jewellery was kept buried. the raiding party discovered hidden jewellery after carrying out digging operations at two places in one of the rooms said to have been exclusively occupied by the petitioner. the petitioner claimed the jewellery, etc., so dug out and discovered as exclusively belonging to her......
Judgment:

D.S. Tewatia, J.

1. Smt. Sita Devi, petitioner herein, has sought for the quashing of search and seizure proceedings conducted by respondents Nos. 2 and 3 under the orders of respondent No. 1 at her residence, by declaring the search warrant issued under Section 132(1) of the Income-tax Act, 196-1 (hereinafter referred to as 'the Act'), as being a nullity and the search and seizure of assets effected in pursuance thereof as illegal. The petitioner has also prayed that proceedings initiated under Section 132(5) of the Act read with Rule 112A of the I.T. Rules, 1962, be declared as illegal and a mandamus be issued to the respondents to return the seized property to her.

2. The facts that are not in dispute can be stated thus. The petitioner is the mother of Kewal Krishan and Narain Dutt Dhablania who resided along with her in one residential premises. Respondent No. 1, the CIT, Patiala, on being allegedly satisfied in terms of Section 132(1) of the Act issued search and seizure warrants authorising respondents Nos. 2 and 3 to effect the search of the aforesaid two sons of the. petitioner and the premises mentioned in the search warrants being used by them as their residential house. During the course of search in pursuance of the said warrants and after, the aforesaid two sons of the petitioner as also the petitioner had stated that no jewellery was kept buried. The raiding party discovered hidden jewellery after carrying out digging operations at two places in one of the rooms said to have been exclusively occupied by the petitioner. The petitioner claimed the jewellery, etc., so dug out and discovered as exclusively belonging to her. That happened on the morning of 17th of August, 1975, the search having begun on the morning of 16th August, 1975.

3. As a result of her aforesaid claim, the jewellery which was dug out and claimed by her was seized in her hands and the jewellery that was recovered from the safe and claimed by her was left with her after making an inventory thereof. After the search in question was over, respondent No. 4, the ITO, issued notice for the purpose of initiating proceedings under Section 132(5) of the Act. On behalf of the respondents, it has been pleaded in their return that the search party conveyed the information to respondent No. 1 that the house in which the two Dhablania brothers aforesaid lived, stood in the name of their mother, Smt. Sita Devi, and most of the jewellery discovered during the search, more particularly the items which were discovered after carrying out digging operations, were claimed by the mother of Dhablania brothers; that other items were also discoverved which showed that she was carrying on some business of lending and that she had not been either an income-tax or a wealth-tax assessee. On this information, respondent No. 1 being satisfied that authorisation under Section 132(1) (b) and (c) the Act was necessary to be issued against the petitioner, on 17th August, 1975, in the afternoon, search and seizure warrants in her name also were issued to respondents Nos. 2 and 3 and the discovered items of jewellery and documents were seized in her hands.

4. On behalf of the petitioner, Mr. Kuldip Singh, the learned counsel, has advanced two contentions : (i) that there was no information with the CIT, respondent No. 1, from which he could be satisfied that action under Section 132(1) of the Act was necessary against the petitioner ; and (ii) that the assets that had been seized in the hands of the petitioner had already been searched out before the search and seizure warrants in her name authorising respondents Nos. 2 and 3 had been issued and since, in pursuance of the said search and seizure warrants, no search was carried out and no discovery effected, therefore, the assets discovered prior thereto could not be discovered and seized in the hands of the petitioner in pursuance of such belated search and seizure warrants against her.

5. On behalf of the respondents, so far as the first contention is concerned, the case set up is, as already mentioned in the narration of the facts, that the information had been gathered first hand from the petitioner herself which had been conveyed to respondent No. 1 who had reason to believe that the assets and documents claimed by her as belonging to her exclusively would not be produced by her when required to do so and she not having been either an income-tax assessee or a wealth-tax assessee, the same was considered beyond her resources and was undisclosed income in her hands.

6. I am of the view that the CIT, on this positive information, could be satisfied in terms of Section 132(1) (b) and (c) and issue search and seizure warrants authorising the officer concerned to carry out the search and seize the assets.

7. As regards the second contention advanced on behalf of the petitioner, it is the common case of both the parties that all the items of jewellery, etc., had been found and recovered whether after opening the safe or digging the earth in pursuance of the search warrants against the petitioner's sons who were living in the same premises with her before the search and seizure warrants in her name for search against her were issued by respondent No. 1.

8. The question that falls for determination is as to whether in law the Commissioner would be within his right in the circumstances to authorize seizure of such of the assets as had been claimed by the petitioner as owned by her. In my opinion, to deny such an authority to the CIT under Section 132(1) would tantamount to render the provisions of Section 132(1) almost totally ineffective, for, if the contention is accepted, then in a given case where adult members of one family jointly live in the same premises which are searched as a result of a search warrant against the karta of the said family or any adult member of that family and when as a result of the search huge wealth is discovered within such premises, one of the adult members of the family on whom there was no search and seizure warrants could claim the entire property thus rendering the search infructuous.

9. In the present case, the respondents avoided the circuitous route and acted honestly by placing the information gathered by them during the search and seizure of the premises of the petitioner, which they were authorised to search, before the CIT who, on being satisfied in terms'of Section 132(1) (b) and (c), issued the warrants authorising them to seize the assets discovered during the search in their hands. In my opinion, no fault can be found with the search of the premises which led to the discovery of items of jewellery and unaccounted income, for the search party had the necessary warrant to search the premises, nor can the seizing of the discovered articles in the hands of the petitioner be looked at askance, for they had warrants of search and seizure in the meantime against the petitioner as well.

10. It is no doubt true that Sub-clause (iii) of Clause (b) of Sub-section (1) of Section 132 envisages the seizure of books of accounts, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search but it nowhere further envisages that the search in question of the premises has to be from the very inception in pursuance of search and seizure warrants against the person in whose hands the discovered items are seized. The provision, in my opinion, envisages that the search of the premises has to be a valid and authorised search in that there must be legal and valid search warrants for searching the premises in question of the persons who on information are believed to reside therein or occupy the same and the person in whose hands, as a result of belated search and seizure warrants, discovered items are seized does not live and occupy such an exclusive portion in the given premises as can be demarcated from the premises of the person against whom the search and seizure warrants had been initially issued.

11. In the present case, it is the assertion of the respondents which has not been denied by filing the application that the family lived as a joint family, that the petitioner was not in exclusive possession of the demarcated part of the plot, that the kitchen was a joint one and there was only one drawing and dining room, that the safe which was embedded in the wall of the room of the petitioner contained not only her jewellery but that of her sons' wives as well.

12. Mr. Kuldip Singh has not argued, and rightly so, that the CIT had no information from which he could be satisfied in terms of Section 132(1) against the sons of the petitioner because the respondents had sufficient information of a positive nature and that is why they did not accept at face value the protestation of the petitioner and her sons and carried out digging operations to the depth of 3-4 feet and dug out the hidden wealth. If they did not have such positive information, they would not have gone to the extent of carrying out the digging operations in the 'house.

13. For the reasons stated, I find no merit in this petition and dismiss the same with costs.


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