Skip to content


In the Matter Of: Shki Hanuman Pershadganeriwala Vs. the Director of Inspection, Income Tax, New Delhi - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 544 of 1972
Judge
Reported in10(1974)DLT96; [1974]93ITR419(Delhi)
ActsIncome Tax Act, 1961 - Sections 132(8) and 138
AppellantIn the Matter Of: Shki Hanuman Pershadganeriwala
RespondentThe Director of Inspection, Income Tax, New Delhi
Advocates: B.R. Sangal,; B.K. Bhargava and; B. Kirpal, Advs
Cases ReferredSeth Brothers v. Commissioner of Income Tax
Excerpt:
(i) direct taxation - natural justice - sections 132 (8) and 132 (10) of income tax act, 1961 - requirement of hearing before extending period of retention documents seized - no requirement under section 132 (8) - person aggrieved by extension has right to move central board of direct taxes under section 132 (10). (ii) interpretation - section 132 of income tax act, 1961 - meaning of authorized officer used in section 132 - officer initially authorized or any other officer to whom articles seized or books of accounts seized are handed over in dealing with for purposes of act. - - and list 'b' consists of books of accounts and documents which were handed over to the petitioner in the presence of witnesses, which he was asked to keep in safe custody and produce before the authorities.....dalip k. rapur, j.(1) hanuman pershad ganeriwala, the petitioner in this writ petition, is a karta of a hindu undivided family, which derives income from several sources. among; other sources it derives rental income from krishna moor market, income from m/s ganeriwala trading company krishna motor market and license money from associated traders and engineers(p) ltd., in respect of a godown at 1. raj narain road. civil lines. delhi it is an assessed under the incoms tax and wealth tax acts. the asssssments under these acts have been completed (according to the petition) up to the assessment year 1970-71. on 10th march, 1970. the family purchased no. 1, raj narain road. civil lines delhi, and informed the department of the purchase. these premises are now apparently the residerce of the.....
Judgment:

Dalip K. Rapur, J.

(1) Hanuman Pershad Ganeriwala, the petitioner in this Writ Petition, is a karta of a Hindu Undivided Family, which derives income from several sources. Among; other sources it derives rental income from Krishna Moor Market, income from M/s Ganeriwala Trading Company Krishna Motor Market and license money from Associated Traders and Engineers(P) Ltd., in respect of a godown at 1. Raj Narain Road. Civil Lines. Delhi It is an assessed under the Incoms Tax and Wealth Tax Acts. The asssssments under these Acts have been completed (according to the petition) up to the assessment year 1970-71. On 10th March, 1970. the family purchased No. 1, Raj Narain Road. Civil Lines Delhi, and informed the Department of the purchase. These premises are now apparently the residerce of the petitioner and his family The business premises are situited at No. 1, Krishna Motor Market. Kashmeri Gale. Delhi, On 8th October, 1971, searches were carried out ai both these premises by the Income Tax authorities under authorisitions issued under action 132 of the Income Tax Act, 1961 In respect of the premises at No. 1 Raj Narain Road, the authorised officer was Shri D. N. S. Sinha, Income Tax Officer, District VIII. In the presence of witnesses, a Panchnama was prepared and certain books of accounts and other documents were seized. Two lists described as lists 'A' and 'B were prepared. Of these, list 'A' consists of books of accounts and other documents which were taken possession of by the authorised officer. and list 'B' consists of books of accounts and documents which were handed over to the petitioner in the presence of witnesses, which he was asked to keep in safe custody and produce before the authorities as and when required. The documents in list 'A' were also signed by the petitioner and the witnesses as well as the authorised officer at places mentioned in the list.

(2) The search at the premises of M/s, Ganeriwala Trading Company at 1/2784, Lothian Road, Kashmeri Gate, Delhi, was conduced at 5-15 P.M. on the same date. Shri D. R. Chawla, Income Tax Officer. was the authorised officar. A Panchnama was prepared in the presses of witnesses and two lists were prepared which were marked as annexures 'A* and 'B' List 'A' consists of building plans, exerciss books and bundle of loose papers, whereas list 'B* consists of books of accounts for several years These accounts books are 41 in numbers. The other documents mentioned in the first list consist of 16 items, 10 of which are bundles of loose papers. The petitioner felt aggrieved by the aforementioced actions of the authorizes and filed a Writ Petition in the Supreme Court of India which is still pending The said search and seizure is, thereforee, not the subject matter of this petition. The grievance of the petitioner now, is in respect of the subsequent actions of the Department

(3) According to the petitioner, some of the original documents seized have been handed over to the Central Bureau of investigation and also to the Sales Tax Department in violaron of Section 138 of the Income Tax Act, 1961. Acting on this information. the Sales Tax Officer has imposed Rs. 80,000.00 as sales tax for the year 1967-68 a copy of the assessment order has been produced by the petitioner. That order is the subject-matter of two Writ Petitions in this Court which are Petitions Nos. 280 and 479 of 1972. it is also stated that information has been sent to the Delhi Municipal Corporation and also, that, the petitioner had been denied an opportunity to inspect his books and documents and had also not been supplied copies of the authorisation letters, etc. On 1st April, 1972. the petitioner was informed by Shri D. R Chawla, lncome Tax Officer that he hid been permitted to retain the books of accounts and documents till 5th October, 1972, or 30 days after the completion of the proceedings whichever was earlier. This document is Annexure 'E' to the petition and obvioasly relates to the premises at Kashmeri Gate, Delhi to the body of this latter, it is stated that the books of accounts and documents listed as per annexures 'A' and 'B' have been allowed to be retained. In the documents fied in Court along with the Writ Petition, these annexures 'A and '8' are not marked as such. Instead, the petitioner has filed the Panchnama as annexure 'C' to the petition, without marking its two annexures as 'A' and 'B'. In fact, the only annexure 'B' filed along with the petition, is the Panchnama which relates to I, Raj Narain Road This has led to some confusion in the affidavits filed m reply to the petition.

(4) The petilioner has chellenged the actions of the authorities on several grounds. It is submitred that the documents seized from I, Raj Narain Road are being retained without any extention beyond the stalutory period of 180 days. It is also urged that, as far as the documents seized from the premises in Kashmeri Gate are concerned, excention of time has been granted without notice to the petitioner which is contrary to natural justice. The action of the authorities in retaining the documents challenged on the ground that it is mala fide. Particularly, the petitioner challenges the sending of information to the Central Bureau of Investigation, the Sales Tax Department and the Municipal Corporation of Delhi. These are in substance the allegations in the Writ Petition. The petitioner has sought a writ in the nature of certiorari to quash the order extending the period for retaining the documents and also for a declaration that the information given by the respondents to the Sales Tax Department and other authorities, was if legal and without jurisdiction. The petitioner also prays for a mandamus directing the respondents to withdraw the decuments from other departments and to refrain from giving any further information. Return of the seized documents Is also sought. As respondents th3 petitioner has joined the Director of Inspection, the Deputy Director of inspection, the Assistant Director of Inspection as well as the two authorised Income Tax Officers who conducted the two searches in question.

(5) Initially, a show cause notice was issued to the respondents, who filed an affidavit of Shri Tejinder Singh, Assistant Director of Inspection, respondent No. 3. To this, a rejoinder was filed by the petitioner. After the petition had been admitted, a further affidavit of Shri Tejinder Singh was filed as a return to the petition Thereafter, the respondents sought more lime for filing further afiidavit and, eventually another affidavit of Shri Tejinder Singh was filed on the date of the hearing of this petition. A counter-affidavit to this affidavit was filed earlier, because apparently the said affidavit was not filed in the Court, but a copy had been handed over to the petitioner Thus, there are three affidavits of Shri Tejinder Singh and three affidavits of the petitioner on record.

(6) The validity of search and seizure is not in question in this petition, as it is the subject matter of the Writ Petition pendiag in the Supreme Court. If this search and seizure is itself invalid, the retention of the documents by the authorities is obviously also invalid This petition has, thereforee, to be decided on the footing that the search and seizure was perfectly valid, and it is on this assumption that we propose to deal with the case.

(7) The petitioner has challeagsd the retention of the documents seized beyond the period of 180 days specified in Section 132(8) of the Income Tax Act, 1961. As far as the books and documents Seized from the Kashmeri Gate premises arc concerned there is no doubt that an extension has been granted by the Commissioner of Income Fax and that extension has been conveyed to the petitioner by letter dated 1st April, 1972, annexure 'B' to the petition. Although, this extension is challenged on the ground that it was granted without hearing the petitioner, this ground has not been seriously pressed at the hearing. In fact, there is no requirement under Section 132(8) of the Act for that Commissioner to hear before he extends the period. If the petitioner was aggrieved by this extention, he bad the right to move the Central Board of Direct Taxes under Section 132(10) of the Act. If such an application had been moved, the Board was bound to hear the petitioner. Thus, this extension of time cannot be declared to bs invalid.

(8) As far as the retention of the documents seized from I, Raj Narain Road is concerned, there seems to have been Considerable confusion as to the contents of the order extending the period. In ihe affidavit of Shri Tejinder Singh in reply to the show cause notice, it was stated that the extension was granted as per the letter annexed as annexure 'F' to the petition. It so happens that there is no annexure 'F' to the petition, and it appears that the deponent must have meant annexure 'E' That document does not relate to I, Raj Narain Road at all. However, the document does mention annexures 'A' and 'B' and the petitioner has marked the Panchnama relating to the seizure at 1. Raj Narain Road as annexure 'B' Apparently this confusion led the Department to believe that annexure 'E' covered the books and documents seized from I, Raj Narain Road. In his second affidavit, Shri Tejinder Singh re-iterated this petition and again stated chat the extension was apparent from the letter dated 1st April, 1972. That affidavit was sworn on 24th March, 1972. It was only in the last affidavit of Shri Tejinder Singh which was sworn on 16th April, 1973 that the true position was indicated. In that affidavit it was indicated that Shri V. Ramaswamy Iyer. Commissioner of Income tax, Delhi Iv, had extended the period of retention up to 5th October, 1972 on an application to that effect by Shri D.N.S Sinha, the authorised officer. The letter of 'Shri Sinha was annexed as annexure Ii and the order of the Commissioner was annexure III. The order of the Commissioner shows that the extension was granted only till 3rd September, 1972 or till 30 days after the completion of proceedings whichever was earlier. In the body of the affidavit, it is stated that extension was granted up to 5th October, 1972. This is apparently incorrect. The only Explanationn for this incorrect date is that the letter of Shri Sinha asked for extension up to 5th October, 1972, whereas extension was actually granted up to 3rd September, 1972. The original file has been shown to us by counsel for the Department. There is no doubt that an order was passed by the Commissioner extending the period up to 3rd September, 1972. The date of this order is not apparent from the official record. There is, however, a noting to show that the order was passed on 28th March, 1972. The next noting which relates to the conveying of the information to various persons was made on 7th April, 1972 and thereis, thereforee, inherent evidence to show that the order must have been passed before 7th April, 1972. The 180 days period expired on 5th April, 1972 and thereforee, inspire of there being some confusion on this point, we must assume that the Commissioner must have passed the order on 28th March, 1972 as averred by Shri Tejinder Singh, respondent No. 3 in his affidavit dated 16th April, 1973. It is regretable that Shri Tajinder Singh had previously taken the position that the annexure 'E' which related to the extension of the period of retention in respect of documents seized from the Kashmeri Gate Premises, related to l-Raj Narain Road. This was incorrect. The only Explanationn for this mistake appears to be that the petitioner did not mark the annexures 'A' and 'B' in the Panchnama relating to the Kashmeri Gate Premises as annexures A'and 'B' but instead marked the Panchna,ma relating to I, Raj Narain Road as annexure 'B' in his petition. We are only. concerned with the existence of the order extending the period. Once the existence of that order is established, the retention must be treated to be valid. There is a strong submission by the counsel for the petitioner that the order of the Commissioner has been fabricated. This, however, does not seem to be correct, because there are several noting on the file which show that this or der has also been conveyed to the other authorities. Unfortunately, this order was not communicated to the petitioner and this forms another part of the petitioner's challenge to the further retention of the documents.

(9) The petitioner's case is that the extension of time under Section 132(8) of the Act has to be granted after hearing him, and also that the order of extension had to be conveyed within the period of 180 days mentioned in that sub-section. That sub-section states :-

'THE books of account or other documents seized under subsection (1) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the date 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 procerdings under the Indian Income Tax Act, 1922, or this Act in respect of the years for which the books of account or other documents are relevant, are completed. On the question of being heard before the order, the petitioner relies on the Assistant Collector of Customs ond Superintendent, Preventive Service Customs, Calcutta and others v. Charan Das Malhotra : 1973ECR1(SC) which was a case under the Customs Act, 1962. The language of section 110(2) of the Customs Act, 1962 shows that the period mentioned there can be extended 'on sufficient cause' being shown, which is indicative of the fact that some sort of quasi-judicial enquiry has to be held. Hence, the Court held that a hearing was necessary. On the other hand, subsection (8) of Section 132 of the Income Tax Act, 1961 indicates that the authorised officer has to record reasons and get the approval of the Commissioner. The language used seems to contemplate the Commissioner approving the reasons given by the authorised officer. No hearing of the person from whom the documents or articles have been seized is contemplated, nor does V seem necessary on principle, If the aggrieved party wants a hearing, he can get the same from the Board as already discussed.

(10) The next part of the petitioner's challenge is that the extension of time has to be approved by the Comrnissioner within the period of 180 days specified. While dealing with the extension of the order, I have already indicated that factually, the order appears to have been passed by the Commissioner within the specified period of 180 days. ft is also the case of the petitioner that not only has the order of extension to bepassed within the period of 180 days but that order has also to be conveyed to him within that period, otherwise it becomes ' invalid. Reliance is placed on the judgments of the Calcutta High Court reported as C. K. Wadha v. Commissioner of Income Tax, West Bengali 1970 278 ITR 782 and Mahavir Prosad Podder v. Commissioner of Income-tax, West Bengal 1970 3 ITR 43, The former judgment is based on the latter judgment, where it was held that the approval had to be given by the Commissioner and the order communicated to the person from whom the books or documents were seized. In fact, in Mahabir Prasad's case, the position was that the order extending the period beyond 180 days was not communicated to the petitioner in that case. The Court concluded that no order could be effective till it had been communicated and as there had been no communication, the order was ineffective. In fact, the position is exactly the same in the present case. Hence, the only question to be considered is whether the order which was passed was ineffective, on the ground that it was not communicated to the petitioner. The Calcutta High Court, did not hold that the order was to be communicated within 180 days. In the subsequent case, i.e., C.K. Vada's case, it was also held that an order extending the period of retention was invalid unless communicated. Now we have to consider whether the communication of the order is anessential condition for its validity under section 132(8) of the Act. The statute- itself is quite silent as to whether the extension has to be communicated. However, if the period of retention is extended, the person entitled to the books of accounts or documents, can move an application to the Board of Direct Taxes objecting to the extension. This he can only do if he knows about the extension. Hence, it is inherent in the scheme of the Section that the person aggrieved by the order of extension should be informed that the period has been extended.. In the present case, the order was passed on 28th March, 1972 and was produced for the first time in Court in April, 1973. thereforee, the petitioner could not be aware of the contents of the order till the same was filed in Court. Does this have the effect of invalidating the extention altogether

(11) The conclusion of the Calcutta High Court, in the two judgments just referred to, was based on the view that certain types of orders are not effective, unless communicated. Any order which effects the rights of a party was stated to be ineffective, unless actually communicated. The Court also held that because an extension of time under Section 132(8) enabled the authorised officer to retain the books beyond the period of 180 days, and also gave the aggrieved person the right to file an application against the extension to the Board, the order must be treated as one which effected the rights of the person from whom the books or document shad been seized, and was thereforee invalid, unless communicated. With respect, we cannot agree with this conclusion. The provisions of Section 132(8) do not contemplate any ' order ' being passed. The provision clearly indicates that reasons have to be recorded by the authorised officer and approved by the Commissioner. What is the legal effect of this provision Obviously, it permits the authorised officer to retain the books of account or other documents seized beyond the statutory period, if the Commissioner aoproves. Clearly, the extension of the period is relateable to the initial authorisation. Under the terms of the authorisation contemplated by Section 132(1). the authorised officer can search premises and seize articles, including books of account and documents. That auhorisation is not effective because of being conveyed to the person whose premises are to be searched, but is effective as soon as it is communicated to the officer concerned. Once that authorisation has been given, the officer concerned has the right to make a search and retain the articles seized for a period of 180 days. The effect of an extension under Section 132(8) is merely to renew and keep alive that authorisation for a furher period. It is, thereforee, not an essential condition for the application of Section 132(8) that the extension of time should be conveyed to the person whose books of account and other documents have been seized. It is equally apparent, that the order has got to be conveyd to that person, in order to enable him to take effective steps to challenge the same by an application to the Board as contemplated by sub-section (10) of section 132. This, means, that the petitioner had the right to get the in formation that the period of retension has been extended and also to get a copy of the reasons. This is not the same as saying that the extension of the period of retention is ineffective, unless it is communicated. It is the right of the petitioner to get a copy of the reasons as well as the approval, so that he can agitate the matter further before the Board. The right of the authorised officer to retain the books of account and documents is not, however, dependent on the petitioner getting that order or information.

(12) This construction of the sub-section is more in accordance with the scheme of the Income Tax Act.For example, interms of Section 151 of the Act, an Income Tax Officeer cannot issue a notice under Section 148 after eight years wither the satisfaction of the Board based on reasons to be recorded by the Income Tax Officer, himself. This does not mean that the order of the Board passed under Section 151(1) of the Act is only effective after it is communicated to the assessed concerned. Such an order obviously affects the rights of an assessed, but it would lead to manifest inconvenience and possibly loss of revenue, if the Board's order were to be ineffective unless first communicated to the assessed. Similarly, in the case of a notice after four years under Section 148, the Commissioner of Income Tax has to be satisfied for reasons to be recorded by the Income Tax Officer. This again does not contemplate that the satisfaction of the Commissioner has to be communicated to the assessed before it is effective, The effect of an order passed by the Board or the Commissioner under Section 151, is to give the Income Tax officer Jurisdiction to issue a notice under S. 148 of the Act Such approval or sanction is immediately effective, the effectiveness of the sanction is not dependent on the assessed being informed of the same. This is exactly the' position under Section 132(8) of the Act. The giving of the approval by the Commissioner of Income Tax renders the retention beyond 180 days valid. The approval is effective when given. It is, however necessary that information of such extension of time should be conveyed to the person from whom the books of account or other articles have been seized so as to enable him to agitate the matter further. Such approval, should be conveyed to the person from whom the books or documents have been seized, either in writing, or otherwise, so as to enable that person to agitate the matter further. In the event of an omission to convey the approval and the reasons on which it is based, that person has a right to get a copy of the order from the authorised officer. It does not, however, mean that the order is invalid and ineffective till the date or time that the learns about it. Hence, we are of the view that the order in the present case was validly passed, and became effective, even though it was not communicated. There is no averment in the petition that the petitioner asked for a copy of the order of extension, which was not complied with.

(13) It is note-worthy that the Allahabad High Court, in Seth Brothers v. Commissioner of Income Tax, U.P. : [1971]80ITR693(All) took the view that the order approving the retention could be passed even after 180 days and would be valid. That was a case of a seizure made before the present Section 132(8) was introduced and to which that provision became operative by amendment of law. That case must be confined as far as the date of the order is concerned, to its peculiar facts. In our view, the order under section 132(8) has to be passed within the period of 180 days to be valid. It is obvious from the facts of the present case, that because of the Writ Petition in the Supreme Court by the petitioner and the stay order passed therein, that the Income Tax authorities have not been able to utilise the books of account and other documents seized to complete the petitioner's assessment. This has resulted in the extension of time. That extension is merely the consequence of the order restraining the Department from utilising the books of accounts and documents seized. This is a factor which has to be taken into account for the purpose of considering the validity of the order of extension in the circumstances of the present case. We would not, otherwise, be able to support an indefinite extension of time.

(14) The last contention on the merits as pleaded in the Writ Petition, is concerned with the passing of information to others under Section 138 of the Income Tax Act, 1961. It is contended that the authorities could not pass the information to the Central Bureau of Investigation, the Sales Tax authorities or the Municipal Corporation of Delhi There does not seem to be any material to show what kind of information has been passed, because none of those authorities have been made parties to this case. It is also difficult to see what sort of relief can be granted to the petitioner in respect of the information that has already passed. Section 138 of the Act is in the following terms :-

'138(l)(a) Disclosure of information respecting assesseds.- The Board or any other Income-tax authority specified by it by a general or special order in this behalf may furnish or cause to be furnished to-

(I) any officer, authority or body performing any functions under any law relating to the imposition of any tax, duty or cess, or to dealings in foreign exchange as defined in section 2(d) of the Foreign Exchange Regulation Act, 1947; or

(II) such officers, authority or body performing functions under any other law as the Central Government may, if in its opinion it is necessary so to do in the public interest, specify by notification in the Official Gazette in this behalf, any such information relating to any assessed in respect of any assessment made under this Act or the Indian Income-tax Act, 1922, a. may, in the opinion of the Board and other income-tax authority, be necessary for the purpose of enabling the officer, authority or body to perform his or its functions under that Law. (b) Where a person makes an application to the Commissioner in the prescribed form for any information relating to any assessed in respect of any assessment made under this Act or the Indian Income-tax Act, 1922, on or after the 1st day of April, 1960, the Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to befurnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any court of law. (2) Notwithstanding anything contained in sub-section (1) or any other law for the time being in force, the Central Government may, having regard to the practices and usages customary or any other relevant factors, by order notified in the official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assesseds or except to such authorities as may be specified in the order.' The section clearly contemplates the giving of information by the Board or other Income-Tax authorities including the Commissioner to others in certain circumstances, and on the fulfillment of certain conditions. As it is not at all clear as to how the information has been passed, it is not possible to accept the petitioner's contention that there has been an infringement of the section: In any case, Section 138 deals with the voluntary passing of information under this Act. It does not relate at all to the powers of other authorities to get information under their own powers. For example, the Central Bureau of Investigation is entitled to tak out a search errant, and the Sales Tax Authorities have their own powers to get information In the absence of lhese parties, the afirdavit of Shri Tejinder Singh to the effect that the Central Bureau of Investigation had summoned the documents under its own powers and that the officers of the Sales Tax Department inspected the books of account for the purpose of imposing sales tax must be accepted. It has been contended by learned counsel for the respondents that all the authorities are part oF the Government machinery and are not debarred from inspecting and passing information to each other. This submission cannot be accepted in toto because the language and terms of Section 138 of the Act, clearly contemplate the passing of information only in certain circumstances. However, no proper decision on this question can be given in view of the absence of proper averments in the Writ Petition, and the failure to implead the other Departments and authorities mentioned. This contention of the petitioner has, thereforee, to be rejected on this short ground.

(15) In this connection, it is necessary also to refer io the submission of the learned counsel for the Department. It is pointed out that Section 137 of the Income Tax Act, 1961, has made income tax proceedings confidential except for certain purposes. Numerous exceptions were provided in that Section. After the repeal of that portion of the Act, it is urged that there Js no bar on the Department disclosing information gathered from records produced before the Department during assessment proceedings. It is undoubtedly open to the authorities to disclose information received by them from assessments or other proceedings under the Act. However, there are restrictions contained in Section 138 asnow existing concerning the manner in which that information is to bedisclosed. Leaving aside sub-clause (a) of sub-section (1) it seems that under sub-clause (b), the Commissioner can disclose information if he is satisfied that it is within the public interest to do so. Hence, if some other authority applies to the Commissioner to obtain information, the same may be disclosed in the discretion of the Commissioner. Under Sub-clause (a) there is also a power to furnish information to other authorities. As this matter has not been fully argued or discussed in the present case, it is sufficient to note that there is no power to disclose information to other authorities and officers outsie the provisions of the Section. As far as the information already given is concerned, we have no power to give any direction concerning the same. As far as the future is concerned, we can only point outthat information has to be given in accordance with Section 138 of the Act if voluntarily given. This restriction does not apply if the information is obtained by other authorities themselves under powers granted to them under some other law.

(16) The above conclusions are sufficient to dispose of this petition, but certain submissions have been made concerning facts which have arisen even after the petition was filed. Both the extensions of time referred to above have expired. The extension in respect of the books of accounts seized from the Kashmeri Gate premises expired on 5th October, 1972 and in respect of J, Raj Narain Road, the extension expired on 3rd September, 1972. In the last affidavit of Shri Tejinder Singh, dated 16th April, 1973, it was shown that there was a further extension sought from the Commissioner of Income Tax in respect of both lots of books and documents These extensions were granted by Shri P.L.Malhotra, Commissioner of Income Tax, Delhi (Central), New Delhi, on 2nd September, 7972 in respect of -the documents seized from I, Raj Narain Road; and on 4th October, 1972, in respect of the seizure made from the other premises. There is a mistake in the heading of Annexure 'V' which reporduces the order, which again refers to I, Raj Narain Road, though it should have referred to the Kashmeri Gate premises. The affidavit of Shri Tejinder Singh, however, shows that this extension was granted with respect to the seizure made at Kashmeri Gate and the address I, Raj Narain Road is given, because of the address of Shri Hanuman Pershad Ganeriwala. The objection of the petitioner is not to his error, but .to the fact that the extension of time was obtained by the Income Tax Officer, Shri Jeevan Lal and not by the authorised officer. Although, this submission does not form part of the Writ Petition, it is of importance because the right of the Department to retain the books of account and documents seized beyond the dates 3rd September, 1972 and 5th October, 1972, are now in question. If the period has already expired without any further extension, the petitioner is obviously entitled to the return of the books and documents.

(17) Referring again to the provisions of Section 132(8) of the Act, it is apparent that the provisions relate to the retention of books of account and documents by the authorised officer. The provision states that the authorised officer cannot retain the books of account and other documents seized beyond the period of 180 days without recording reasons and getting the approval of the Commissioner. For the purpose of the initial authorisation, the officers concerned were Shri Chawla and Shri Sinha, Income Tax Officers. For the purpose of utilising these documents, the relevant officer was the Income Tax officer dealing with the petitioner's case, who admittedly was Shri Jeevan Lal, to whom the case had been transferred by orders of the Board. The question now arises, as to whether the restriction contained in Section 132(8) concerning the retention of the books of account and other documents applies also to other Income Tax Officers. Once the books have been seized by the two authorised Income Tax Officers, they are normally expected to supply the books and documents to the Income Tax Officer dealing with the case of the petitioner as the assessment cannot be completed by the officer authorised to make the search, unless he derives jurisdiction under Section 130A of the Income Tax Act, 1961. Every assessedhas a specific Income Tax Officer who has jurisdiction over that assessed. That officer in the case of the petitioner is obviously Shri Jeevan Lal, to whom the case had been transferred by the Board. The use of the words 'authorised officer' in the provisions of Section 132 first occur in sub-section (1). That provision states that the search may be carried out by a person authorised to do so, who may be a Deputy Director of Inspection, an Inspecting Assistant Commissioner, an Assistant Director of Inspectoin or an Income Tax Officer. Once the search has been carried out, the authorised officer has certain powers but the section does not cnable that authorised officer to do anything with the books of accounts and other documents seized, and nor can he complete the assessment thereforee, follows that once the search has been made than the Section can only be validly and effectively acted upon if the books and other documents are handed over to the Income Tax-Officer having jurisdiction to deal with the assessed. That Income Tax officer is specified in Section 130A; he happens to be Shri Jeevan Lal in the case of the petitioner. There are two ways of reading Section 132(8)-either only the authorised officer is subject to the restriction of not being able to retain the account books and documents beyond 180 days, or that restriction applies to every other Income Tax Officer also, to whom the books of account of other documents may be handed over. It seems that the proper way of interpreting ihe term 'authorized officer' is to read it as either the initially authorised officer, or any other officer to whom the books of account may be handed over. Thus, if the books of account of other documents were handed over to Shri Jeevan Lal by the officer initially authorised to make the search, then Shri Jeevan Lal would become the authorised officer, because he would be acting under the authority initially granted to the authorised officer, i.e., the initially authorised officer. This seems to be the only proper interpretation of the words 'authorised officer' appearing in Section 132(8) of the Act. There is no provision in the Act showing that a new authorisation has to be issued every time the books and documents are transmitted from the initially authorised officer to any other Income Tax Officer. In fact, Section 132(1) contemplates the initial search being done by persons who are not even Income Tax Officers. Such officers cannot complete the assessment of the person from whom the books of account or documents have been seized or any other person. Further more, sub-section (5) to Section 132 contemplates orders being passed in relation to money, bullion, jewellery or other valuable articles, etc., seized, by the Income Tax Officer. This can only mean that these articles have to be forwarded to the Income Tax Officer having jurisdiction over the assesses. In order to give Section 132(8), some meaning and effect, it is, thereforee, necessary to read the words 'authorised officer' appearing in that sub-section as also including the Income Tax Officer, to whom the initially authorised officer might hand over the books of account or documents or . other articles seized. If this interpretation is not placed on Section 132(8),thepresent Income Tax Officer, Shri Jeevan Lal, could retain the books of accounts and documents for an indefinite period without any approval of the Commissioner. This cannot be the true meaning of the provision. Hence, he must also be treated as the authorised officer as far as the petitioner is concerned, as soon as the books of accounts and other documents were handed ober to him. This would mean that the restriction appearing in Section 132(8) regarding the retention of the books of account and other documents would also apply to Shri Jeevan Lal, who.ould also have to return the books and documents if he did not obtain extension of time. It would clearly follow that he, Shri Jeevan Lal would be the authorised officer also for the purpose of obtaining a further extension of time. It would follow, that the extension of time granted by Shri P.L. Malhotra, Commissioner of Income Tax up to 30th June, 1973, would be valid although it was obtained apparently, on the application of the Income Tax Officer having jurisdiction over the petitioner and not the officer who had originally conducted the search. It may he-pointed out, that there may be cases in which the initially authorised officer may be transferred, or may leave the service, or retire, or otherwise become incompetent to deal with the books of accounts and other documents seized. The section contains a lacuna as to what is to happen to the articles seized if the authorised officer ceases to be an officer. It, thereforee, seems .that, in order that the section should be effective and meaningful, the term 'authorised officer' must be read in the section as a whole, to mean the officer, who was initially authorised, or any other officer to whom the articles seized, or books of accounts or documents seized, are handed over in dealing with them for the purposes of the Imcome Tax Act.

(18) We have been referred to a passage in the Wanchoo Committee Report', where this very lacuna we have just referred to has been pointed out. In order to protect the rights of a person whose books of account and documents have been seized, we have reached the conclusion that we must interpret the terms authorised officer' consistently with the other provisions of the Act, which gives the Income Tax Officer having jurisdiction over the assessed alone, the power to deal with his case.

(19) On this view of the matter, the order passed by Shri Malhotra extending the period of retention must be accepted as valid. That being so, the petitioner is not yet entitled to claim the return of the books and documents seized.

(20) It must be observed that the retention of the books of account and documents seized from the petitioner has been extended from time to time, and also, that the books of account are 41 in number and also cover a period for which the assessed has already been assessed. The provisions of Section 131 of the Act contain a proviso that the Income Tax Officer shall not retain books or documents for a period exceeding 15 days without the approval of the Commissioner. It seems to us, that the retention of the books of account and documents of the petitioner for a period which is already over one year would be difficult to sustain in normal circumstances. It can only be justified on the ground that there is a stay order by the Supreme Court. We have been informed that the .stay order has been modified so as to enable the Department to complete the assessment of the petitioner. If that is so, we expect the assessments to be completed and the books returned by the end of the present extension which expires on 30th June, 1973.

(21) With these observations and on the conclusions already reached with, this Writ Petition has to fail and is accordingly dismissed. As the points raised by the petitioner are largely the result of the respondents failing to propertly communicate the reasons for extending the period of retention aswell as the approval of the Commissioner recorded thereon to the petitioner, we leave the parties to bear their own costs.

Dalip K. Kapor, J.

(22) I agree.


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