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Metal Fittings P. Ltd. and Another Vs. Union of India and Others - Court Judgment

LegalCrystal Citation
Subject Direct Taxation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition No. 833 of 1982
Judge
Reported in(1983)37CTR(Del)269; ILR1982Delhi210; [1983]141ITR758(Delhi); 1982RLR508
ActsIncome Tax Act, 1961 - Sections 132(8)
AppellantMetal Fittings P. Ltd. and Another
RespondentUnion of India and Others
Advocates: S.L. Watel,; Rajiv Nayar,; R.S. Sawhney,;
Cases ReferredBarker v. Palmer
Excerpt:
.....course of search and seizure can be retained by the department after the expiry of 180 days. the account books of the petitioners were seized on 18-8-1981. the period of 180 days expired on 14-2-1982. on 8-3-1982 the income tax officer recorded the reasons for retaining the books beyond the period of 180 days. the commissioner gave his approval to this on 25-3-1982. allowing the writ petition,; 1. the period of 180 days is mandatory and not directory. the procedure of recording of reasons for retaining the books beyond 180 days and the approval of the commissioner in this regard must be completed before the period of 180 days expired.; 2. the retention of the books beyond 180 days cannot be validated by a subsequent order of the commissioner. the language in this sub-section clearly..........the matter to the commissioner. the commissioner gave his approval for the retention of the account books on march 25, 1982. this happened after the petition was filed. 4. the question is whether after the expiry of the period of 180 days it was open to the commissioner to accord his approval for the retention of the books. the ito recorded the reasons after the expiry of 180 days. the commissioner accorded the approval for retention of the books on march 25, 1982. this was also much after 180 days. 5. the relevant provisions of s. 132(8) are in these terms : '(8) the books of account or other documents seized under sub-section (1) (or sub-section (1a) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the days of the seizure.....
Judgment:

1. The short question raised in this petition is whether the books of account seized in the course of search and seizure can be retained by the I.T. Dept. after the expiry of 180 days under s. 132(8) of the I.T. Act 1961 ('the Act').

2. The petitioner-company, Metal Fittings Pvt. Ltd., carries on business at Okhla industrial Estate. Its registered office is at Maya Puri. A search warrant was issued on July 27, 1981. Its premises were searched at both places. The books of account were seized. The Department took them away. This happened between August 6, 1981, and August 18, 1981. We will take August 18, 1981, as the date of seizure for computation of 180 days. Now, 180 days computed from August 18, 1981, expired on February 14, 1982. On February 26, 1982, the petitioner asked the Department to return the books as the period of 180 days prescribed in s. 132(8) of the Act had expired. The respondents refused to return the books. On this the petitioner filed the present petition of March 22, 1982, under art, 226.

3. We now have it from the Department that on March 8, 1982, the ITO recorded the reasons for retaining the books beyond the period of 180 days which had already expired by then. He sent his reasons to the IAC. On March 12, 1982, the IAC referred the matter to the Commissioner. The Commissioner gave his approval for the retention of the account books on March 25, 1982. This happened after the petition was filed.

4. The question is whether after the expiry of the period of 180 days it was open to the Commissioner to accord his approval for the retention of the books. The ITO recorded the reasons after the expiry of 180 days. The Commissioner accorded the approval for retention of the books on March 25, 1982. This was also much after 180 days.

5. The relevant provisions of s. 132(8) are in these terms :

'(8) The books of account or other documents seized under sub-section (1) (or sub-section (1A) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the days of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained :

Provided that the Commissioner shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income-tax Act, 1922 (11 of 1922), of this Act in respect of the year for which the books of account or the documents are relevant are completed.'

6. Two decisions were cited before us. One is the decision of the Allahabad High Court in Seth Brothers v. CIT [1971] 80 ITR 693. The Allahabad High Court said (p. 698) :

'The sub-section does not require that the approval should be taken prior to the expiry of that period (i.e., 180 days). The language is sufficiently wide to enable the authorised officer to seek and obtain the approval of the Commissioner even after the expiry of 180 days. The approval of the Commissioner granted even after the expiry of that periods would be sufficient to sanction and validate the further retention of the books bond that period.'

7. This ruling certainly supports the contention of the Revenue.

8. The petitioner, on the other hand, relies on a ruling of this court reported as Hanuman Pershad Ganeriwala v. Director of Inspection (Income-tax) : [1974]93ITR419(Delhi) . A Division Bench of this court doubted the correctness of the Allahabad decision. They said (p. 429) :

'In our view, the order under section 132(8) has to be passed within the period of 180 days to be valid.'

9. In our opinion the period of 180 days prescribed by the sub-section is mandatory. It is not directory. A plain reading of the sub-section suggests that the books of account seized shall not be retained by the authorised officer for a period exceeding 180 days from the date of the seizure unless two things are done before the expiry of the period, namely, (1) reasons are recorded by the authorised officer in writing and (2) the approval of the Commissioner is obtained. Both these things are a precondition. They must be done before the period of 180 days expired. This conclusion is supported by the strong language in which sub-s (8) is worded. To use the language of Lord Russell of Killowen, 'The wording is too strong to justify the milder view'. [Smith v. Cammel, laird & Co. [1940] AC 242.

10. The sub-section is framed in negative and prohibitory terms. It says that the books of account, 'shall not be retained' 'for a period exceeding one hundred and eighty days'. The words 'not', 'exceeding', are the key words. These words go to the power and jurisdiction itself. Neglect to comply with the conditions of the sub-section is fatal to the right of retention beyond 180 days.

11. Negative words alone are a deciding factor to compel a mandatory construction of a statute of this kind. We do not agree that even if the approval of the Commissioner is accorded after the expiry of 180 days, the retention of the books will be valid. We respectfully agree with the view expressed by the Division Bench of this court. We do not think that sub-s (8) is widely worded, as is the view of the Allahabad High Court. In our judgment it is restrictive in nature. It restricts the right of the Department to retain books for an indefinite time. It is couched in negative terms and sets a deadline within which the approval of the Commissioner must be obtained.

12. Where statutory restrictions are couched in negative terms they are almost invariably held to be mandatory. Negative words compel an imperative construction. By the language used in the sub-section the thing must be done in a particular from or manner. It shall not be done otherwise.

13. The whole aim and object of the legislature would be plainly defeated if the command to do the thing in the particular manner is not obeyed. The neglect of the requirements of an Act which prescribes how something is to be done will invalidate the thing being done. 'Provisions with respect to time are always obligatory, unless a power of extending the time is given to the court. 'Barker v. Palmer [1881] 8 QBD 9. The exercise of power to retain books after the designated time is denied to the authorised officer. It is forbidden act. The power can be exercised only in the manner and within the time prescribed. The requirement as to the time of exercise of the power is mandatory.

14. Counsel for the Union of India and the Revenue have raised three arguments before us. In the first place, it is said that the proviso to agree. The proviso does not help us in the constriction of the sub-setting. The sub-section has to be interpreted on its own terms. On the construction of sub-s.(8) it is plain that the deadline of 180 days must be observed by the authorised officer as well as by the Commissioner. If the deadline is crossed, the books cannot be retained. This is what the Legislature says. The Legislature meant what it says. The legislative history of the proviso also shows this. This sub-s (8) was introduced by the Amendment Act, 1965. It came into operation with effect from April 1, 1965. This is a brand new provision. It is intended for the protection of the assessed, before its enactment there was no time-limit. Now, there the is a time frame. If we are to paraphrase the legislative command in old biblical English we will say : 'Thou shall not cross the deadline'. After the introduction of the new sub-section, it is difficult to accede to the contention of the Revenue that it can retain he books beyond 180 days and obtain the approval of the Commissioner after the expiry of the specified time.

15. Secondly, counsel said that the petitioner has an alternative remedy under sub-s (10). It was suggested that the petitioner should go to the Board of Direct Taxes and object there to the retention of the books beyond 180 days on any ground open to him. We do not agree. When such an argument was raised before the Calcutta High Court, Chief Justice Harris said : 'This is an appeal from Caesar to Caesar'. Now, the present is a case of clear infringements of the statutory provision contained in sub-s. (8). The petitioner can straightway come to u and ask for the return of books because the period of 180 days has admittedly expired.

16. Lastly, counsel said that the observations in Hanuman Pershad Ganeriwala : [1974]93ITR419(Delhi) are obiter But we have ourselves construed the sub-section. Before us the question has directly arisen. We have come to the conclusion that the view taken by the Division Bench of this court is in consonance with the view we take.

17. For these reasons, the writ petition is allowed. The Department is ordered to return the books of account. The order of the Commissioner according approval dated March 25, 1982, is hereby quashed.

18. At the request of the Department we allow a period of 15 days within which the books shall be returned to the petitioner.

19. Counsel asks for a certificate for appeal to the Supreme Court. We do not think we should grant a certificate of fitness because in our opinion the provision of law is clear and unambiguous.


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