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Mahabir Prosad Poddar Vs. Commissioner of Income-tax and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberMatter No. 204 of 1966
Judge
Reported in[1970]77ITR343(Cal)
ActsIncome Tax Act, 1961 - Section 132(1), 132(8) and 132(10)
AppellantMahabir Prosad Poddar
RespondentCommissioner of Income-tax and ors.
Appellant AdvocateA. Banerjee, Adv.
Respondent AdvocateD.K. Sen, Adv.
Cases ReferredCharandas Malhotra v. Assistant Collector of Customs and Superintendent
Excerpt:
- .....act'). after a prolonged search of the different premises, the officers seized a large number of books, documents and papers belonging to the petitioner.3. some of the seized documents and papers were returned to the petitioner on the 3rd february, 1966, some others were returned on the 10th february, 1966, and some further documents and papers were returned on the 15th february, 1966.4. it is the case of the petitioner that a large number of documents and papers are still being kept by the respondents and have not been returned to the petitioner in spite of repeated representations in that behalf.5. it is this retention of the books, documents and papers by the income-tax authorities which is challenged before me in this application.6. although several grounds have been taken.....
Judgment:

T.K. Basu, J.

1. The petitioner, Mahabir Prosad Poddar, is the sole proprietor of (1) New Bengal Syndicate, (2) Indian Agency, (3) Bharat Kala Mandir. The petitioner has his office at premises No. 62, Bentinck Street, Calcutta, his residence at premises No. 14/1, Sir Hariram Goenka Street, Calcutta, and he also has a chamber at 3, Bysak Dighi Lane.

2. On the 30th August, 1965, several officers of the income-tax department entered the office of the petitioner at 62, Bentinck Street, his chamberat 3, Bysak Dighi Lane, and his residence at 14/1, Hariram Goenka Street, Calcutta, armed with warrants of authorisation issued under the provisions of Section 132 of the Income-tax Act, 1961 (hereinafter referred to as ' the Act'). After a prolonged search of the different premises, the officers seized a large number of books, documents and papers belonging to the petitioner.

3. Some of the seized documents and papers were returned to the petitioner on the 3rd February, 1966, some others were returned on the 10th February, 1966, and some further documents and papers were returned on the 15th February, 1966.

4. It is the case of the petitioner that a large number of documents and papers are still being kept by the respondents and have not been returned to the petitioner in spite of repeated representations in that behalf.

5. It is this retention of the books, documents and papers by the income-tax authorities which is challenged before me in this application.

6. Although several grounds have been taken challenging the search, seizure and retention of the books and documents in the present case, Mr. Asoke Banerjee, appearing on behalf of the petitioner, confined his challenge to the retention of the books and documents on one ground at the time of the hearing. My attention was drawn to Section 132(8) of the Act which provides that books of account and other documents which have been seized under Section 132(1) shall not be retained by the authorised officer for a period exceeding 180 days from the date of seizure unless reasons for retaining the same are recorded by him in writing and the approval of the Commissioner is obtained for such retention.

7. Mr. Banerjee next drew my attention to paragraph 14 of the petition where it has been stated, inter alia, as follows :

' Your petitioner further states that 180 days expired after the said seizure on the 26th February, 1966, but no reason for retaining the said documents, account books and things of your petitioner have been recorded in writing by the respondents Nos. 2 to 8. In any event, no notice of any such reasons having been recorded and no notice of the ground or reasons for the approval of respondent No. 1 for such retention and no copy of the order of respondent No. 1 giving the approval has been given to your petitioner which the said respondents are bound to give,'

8. These allegations have been dealt with in paragraph 15 of the affidavit of Padmanabha Pradhan affirmed on the 8th July, 1966, in the following terms :

'With regard to paragraph 14 of the petition, I crave leave to refer to the records of the income-tax department and further state that the documents of Ram Karan Poddar were retained Which were useful for the income-tax proceedings against him. The said documents have been retainedafter recording the reasons for the same and after taking the approval of the Commissioner of Income-tax, West Bengal III.'

9. There is, however, no statement in the affidavit of Padmanabha Pradhan that the recording of reasons by the Income-tax Officer or the approval of the Commissioner of Income-tax was ever communicated to the petitioner, Mahabir Prosad Poddar. In fact, it was stated before me by Mr. Dipak Sen, appearing on behalf of the revenue, that no such communication appears from the records of the income-tax department. Consequently, the arguments before me proceeded on the above state of facts.

10. Mr. Banerjee submitted that the person from whose custody the books, documents and papers had been seized is entitled under the law to be communicated the reasons of the Income-tax Officer and the approval of the Commissioner under Section 132(8) of the Act.

11. In support this contention, Mr. Banerjee drew my attention to Section 132(10) of the Act which provides that if a person legally entitled to the books of account and other documents seized under Section 132(1) of the Act objects for any reasons to the approval given by the Commissioner under Sub-section (8) he can make an application to the Board stating therein his reasons for such objection and asking for the return of the books of account and other documents. Section 132(12) of the Act further provides that, on receipt of such an application, the Board may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fit. It was submitted, on the strength of the above provisions, that unless the person who is entitled to the ' return of the books is communicated the reasons for the retention beyond 180 days and the approval of the Commissioner, it would not be possible for him to prefer his objections under Section 132(10) of the Act. In other words, unless the requirement of communication of the reasons recorded by the officer and the approval of the Commissioner be read into the provisions of Section 132(8), the valuable statutory right conferred by Section 132(10) of the Act would be rendered entirelyjnugatory. Hence, Mr. Banerjee invited me to hold, on a proper interpretation of the scheme of the Section 132(8) read in the light of Sections 132(10) and 132(12), that it was incumbent on the authorities to communicate the reasons recorded by the Income-tax Officer in writing and the approval of the Commissioner to the person affected.

12. Reliance was placed in this connection on a decision of the Supreme Court in the case of Bachhittar Singh v. State of Punjab, : AIR1963SC395 . In that decision, it has been held by the Supreme Court that, in order that an opinion of the State Government can amount to a decision, it must be communicated to the person concerned. It is of the essence that the order has to be communicated to the person who would be affected by that order before theState Government and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the authority concerned to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.

13. Reliance was also placed on a decision of this court in the case of Nripendra Nath Mazumdar v. N. M. Bardhan, : AIR1959Cal219 . In that case Sinha J. (as he then was), after a, review of several decisions of the High Courts of Calcutta, Bombay and Madras, summed up the legal propositions with regard to the making of an order and the communication thereof in the following words :

' In my opinion the position may be summed up as follows :

(1) An order may be taken to be made on the date it came into existence, if the nature of the order is such that it is not necessary to communicate it to anyone. It is easy to see that only very few orders will satisfy this test.

(2) If an order is made which affects the rights of a person, then the order must be communicated to such person in order to be complete and effective. The date of the order is the date when it is made known to the affected party. To this, however, there are certain exceptions, which are as follows :

(i) Where the order is made in the presence of the party, whose right has been affected.

(ii) Where notice has been given to the party affected by the order to be present at the announcement, but in spite of such notice, he fails to be present. Where the method of giving notice is prescribed, e.g., by publication in the Gazette, compliance with the same will be deemed sufficient, as also in a case where the law presumes knowledge.

(iii) Where owing to the obstruction of the party affected himself, the order cannot be communicated within a reasonable time.

(iv) Where the authority making the order has, in spite of reasonable efforts, been unable to serve the order within a reasonable time or at all. In such a case, the date of making of the order is the date of the order.

(3) Barring these exceptions, the law is that an order which affects the interests of a person cannot be said to be effectively made until it has been brought to his notice.'

14. Relying on the above decisions, Mr. Banerjee argued that, even on general principles, I should hold that since the order of retention oi books and documents beyond the period of 180 days in the present case affects the rights of the petitioner, the order does not become complete and effective, until it is communicated to the petitioner. Since there is no completeand effective order for retention of the books and documents under Section 132(8) of the Act, the petitioner is entitled to the return of the books and documents on this ground alone.

15. Mr. Dipak Sen appearing on behalf of the revenue submitted in the first place that the power of the Income-tax Officer to retain the books and documents beyond the period of 180 days was fettered by two conditions, viz., (1) he must record the reasons for such retention in writing, and (2) he must obtain an approval of the Commissioner for such retention. Section 132(10), it was said, gives a right to prefer an objection only against the approval of the Commissioner but not against the reasons recorded by the Income-tax Officer in writing. It was, however, not disputed by Mr. Sen that neither the approval of the Commissioner nor the reasons recorded by the Income-tax Officer have been communicated to the petitioner in the present case.

16. Certain controversies were raised before me as to whether the approval of the Commissioner under Section 132(8) means prior approval before the reasons are recorded or a subsequent approval of the reasons recorded by the Income-tax Officer. Mr. Sen invited me to hold that such approval is a prior approval and need not contain any specific reasons in support of such approval. Mr. Banerjee contended that such approval must be subsequent to the recording of the reasons by the Income-tax Officer to which the highest officer in the hierarchy would be granting his approval after properly applying his mind thereto.

17. Even if I accept the contention of Mr. Sen that the approval of the Commissioner is a prior approval, without expressing any final opinion on this question, I do not see how it is of any assistance to the revenue in the present case. After all, the legislature has conferred a valuable right of preferring objections against the approval of the Commissioner to a higher authority, viz., the Board. Unless the person affected is communicated with the fact of the approval by the Commissioner and the grounds of such approval, I do not see how the valuable right under Section 132(10) of the Act can be exercised. In other words, having regard to the provisions of Section 132(10) and 132(12) of the Act, the communication of at least the approval of the Commissioner must necessarily be read into the provisions of Section 132(8) of the Act. Since no such communication was made in the instant case, it must be held that the provisions of Section 132(8) on a proper construction thereof, have not been complied with. Hence, the order of retention of the books and documents under Section 132(8) of the Act has not become valid and effective.

18. Mr. Sen next submitted that the scheme of Section 132 of the Act makes a distinction between certain actions of the income-tax authorities which amount to an order and certain others which do not amount to anorder. Reference was made in this connection to Sections 132(5) and 132(11) which use the expression ' order '. It was pointed out that Section 132(8) however does not use the expression ' order ' in terms.

19. Once again, I fail to see how this contention helps the revenue. I must confess to considerable difficulty in appreciating how the seizure of books, documents and papers belonging to a citizen which clearly amounts to the deprivation of a valuable right of property can be continued beyond the statutory period of 180 days without there being an order by the appropriate authority in that behalf. Even if I assume in favour of the revenue that it is merely a decision and not an order, the law laid down by the Supreme Court in Bachhittar Singh's case clearly requires such a decision to be communicated before a party can be bound by such a decision.

20. Lastly, Mr. Sen drew my attention to a decision of this court in the case of Charandas Malhotra v. Assistant Collector of Customs and Superintendent, Preventive Service, : AIR1968Cal28 . In that case it was held, on a construction of the provisions of Section 110 of the Customs Act, 1962, that, where a vested right has accrued to a party to obtain the return of goods seized under that section, it can only be taken away for sufficient cause after notice and after giving a hearing to the party concerned. Mr. Sen submitted that in the present case there was no vested right to obtain the return of books and documents seized and they are presumed to continue under seizure until actually released.

21. I am unable to accept this contention of Mr. Sen. In my view, Section 132(8) clearly confers a right to a citizen to obtain the return of the books and documents seized under Section 132(1) unless there is a valid and proper order of retention made thereunder. Such an order, or at least, the approval of the Commissioner in respect thereof must necessarily be communicated to the person affected thereby. The above decision, which was concerned with Section 110 of the Customs Act, 1962, which does not appear to me to be in pari materia with the provisions of Section 132 of the Act, is of no assistance to the revenue in the present case.

22. Therefore, all the arguments advanced on behalf of the revenue fail. In the result, it must be held that since the approval of the Commissioner in the present case was not communicated to the petitioner, the order for retention of the books and documents beyond the period of 180 days was not validly and properly made under Section 132(8) of the Act, In that view of the matter, it must follow that there has been no valid retention of the books and documents in compliance with the provisions of Section 132(8) of the Act beyond the 22nd February, 1966,

23. In the result, this application succeeds and the rule is made absolute.There will be a writ in the nature of mandamus directing the respondentsto forthwith return to the petitioner all the books, documents, papers and things seized from premises No. 62, Bentinck Street, Calcutta, 3 Bysak Dighi Lane, and 14/1, Hariram Goenka Street, Calcutta. The respondents would, however, be at liberty to proceed according to law. There will be no order as to costs.


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