Taxability of Income of nursery growing and selling flowers, flowers pants

There are two type of operations are generally carried out in nursery or greenhouse operations. In the case where soil is removed from the land and kept in various pots etc and subsequent operations are carried out in pots. In such a scenario income from sale of flowers or nursery products will be considered as agriculture income because basic operation had been done on the soil and there is no relevance of subsequent operation hence sapling or seeding grown is considered as deemed agricultural income but if flower plants are sold after purchased it from farm house will be business income.

Income from Sale of forests, trees, wild grasses, fruits and flowers grown spontaneously and without human effort will be taxed under Section 28 of the Act as income from Business or Profession.

Income derived from saplings or seedlings grown in a nursery shall be deemed to be agricultural income [Explanatory notes to the provisions of the Finance Act, 2008 - Circular No. 1/ 2009, dated 27.03.2009]

4. Widening the scope of “agricultural income”

4.1 “Agricultural income” is defined in sub-section (1A) of section 2 of the Act mean, inter-alia, income derived from land which is situated in India and is used agricultural purposes. Such agricultural income is exempt from tax under sub-section (1) of section 10 of the Income-tax Act, 1961. It has been held by judicial authorities that whether income from nursery operations constitutes agricultural income or not, will depend on the facts of each case. If the nursery is maintained by carrying out basic operations on land and subsequent operations are carried out in continuation the basic operations, then income from such nursery would be agricultural income not liable to tax under section 10. However, if the nursery is maintained independently without resorting to basic operations on land, then income from such nursery would not be agricultural income and would be liable to be included in the total income.

4.2 With a view to giving finality to the issue, an Explanation in section 2 of Income-tax Act, has been inserted providing that any income derived from saplings seedlings grown in a nursery shall be deemed to be agricultural income. Accordingly, irrespective of whether the basic operations have been carried out on land, such income will be treated as agricultural income, thus qualifying for exemption under sub-section (1) of section 10 of the Act.

4.3 Applicability: This amendment has been made applicable with effect from April, 2009 and shall accordingly apply for assessment year 2009-10 and subsequent assessment years.

Income  from flower and petals, growing of -  Where assessee, a landscaping architect, declared income derived from flowers and petals grown in plots as agricultural income and produced details of expenditure incurred in this regard, said income was agricultural income and was exempted under section 10(1)

Assessee, a landscaping architect, was running two business concerns viz. plant scape and flowers and petals. He filed return of income declaring taxable income from plant scape business and agricultural income from flowers and petals grown in plots. It produced details of expenditure incurred in raising flowers and petals in plots. Assessing Officer treated income derived from flowers and petals grown in plots as business income. Tribunal held that even plants grown in plots was an agricultural activity and, therefore, income derived from flowers and petals grown in plots was agricultural income and same was exempted under section 10(1). Since it was not case of Assessing Officer that assessee had not produced any details of expenditure incurred in raising flowers and petals in plots, he was not justified in his view. In peculiar facts of case order of Tribunal deserved to be upheld. [In favour of assessee] (Related Assessment year : 2004-05) - [CIT v. K.N. Pannirselvam (2017) 77 taxmann.com 24 (Mad.)]

Growing of plants in pots of nursery involves all activities of agricultural farming

Agricultural income (Nursery) - Growing of plants in nursery is an agricultural activity as this involves all activities of agricultural farming. Assessee owned agricultural land and claimed agricultural income from agricultural operation in nursery of flower and petals in pots. Revenue contended that assessee did not submit any document with regard to expenditure incurred towards agricultural operations of nursery. Where revenue had not raised issue of expenditure on income from flowers and petals of nursery during assessment proceedings and even during appeal, it could not be introduced for first time in appeal under section 260A. [In favour of assessee] (Related Assessment year : 2007-08) – [CIT v. K. N. Pannirselvam (2016) 243 Taxman 219 : 75 taxmann.com 98 (Mad.)]

Where assessee-company constructed a green house floriculture project and it grow rose flowers on bridge of plastic trays erected with help of M. S. stand 2-3 ft. above said land, operation carried out by assessee was agricultural operation

Assessee acquired agricultural land from agriculturist on lease and constructed a green house floriculture project on said land - It started growing of rose flowers/plants on bridge of plastic trays erected with help of M.S. stand 2-3 ft above said land - According to assessee, for plantation of roses a very well treated soil was required, manures were mixed in soil for preparing a base for growing rose plants, trays were filled with a mixture of soil, insecticides were sprinkled on plants to save plants from any disease, root stocks were brought from market and placed in green house, mother plant was otherwise reared on earth, subsequently saplings were planted on plastic trays, which were kept at height of 2-3 ft. placed on M.S. stand, purpose of growing rose plants at a height was primarily to avoid pest and to develop in a controlled atmosphere, and green house was used for various benefits so that sun-light and humidity level both could be maintained - Assessee claimed that income earned from sale of rose flowers was an agricultural income eligible for exemption under section 10(1) - Assessing Officer held that rose plants were not planted on earth land and no basic agricultural operation was carried out by assessee on land. He, therefore, concluded that in absence of basic agricultural operation, income in question was not an agricultural income and, thus, was not eligible for exemption under section 10(1). On due consideration of activity as explained by assessee, it was evident that operation carried out by assessee was agricultural operation in nature. Therefore, income in question was an agricultural income eligible for exemption under section 10(1). [In favour of assessee] (Related Assessment year : 2005-06) - [DCIT, Navsari v. Best Roses Biotech (P) Ltd. (2012) 17 taxmann.com 56 (ITAT Ahmedabad)]

Section 2(1A) : Definitions – Agricultural income – Nursery – Subsequent operations

In the present case, the Assessing Officer found that the assessee was maintaining a nursery at his residence in Kanpur. The Assessing Officer found that the assessee was not deriving income from any land used for agriculture. He was of the view that the nursery was maintained and run as a business quite independently of agriculture. Even if keeping of the nursery necessarily involves the use of some land and earth for the purposes of rearing plants, that would not by itself amount to carrying on a primary agricultural operation in the sense of cultivation of the soil. The Commissioner of Income-tax (Appeals) reversed the order of the Assessing Officer relying on the decision of the Madras High Court in CIT v. Soundarya Nursery (2000) 241 ITR 530 (Mad.).

In further appeal, the Tribunal has held vide paragraphs 19 and 20 of its order that the Assessing Officer should bring on record the nature of the operations, viz., primary as well as secondary on the specific land area, and thereafter apply the law laid down in the above cases to the facts of the present case. He has observed that the Assessing Officer has to examine how the assessee can be said to be carrying on agriculture in the primary sense, i.e., tilling of the land, sowing of seeds and planting and doing other operations on the land. After examining this aspect, the Assessing Officer has to examine the secondary operation carried out by the assessee. Mere performing of the secondary operation will not make the assessee's activity an agricultural activity as held by the Supreme Court.

Tribunal set aside the matter to the Assessing Officer to examine how the assessee could be said to be carrying on agricultural operation in the primary sense, i.e. tilling of the land, sowing of seeds and planting and doing similar other operations on the land. After examining that aspect, the Assessing officer had to examine the subsequent operations carried out by the assessee. Mere performing of the subsequent operations would not make the assessee’s activity an agricultural activity. The High court upheld the order of Tribunal. (Related Assessment year : 1997-98) – [Jugal Kishore Arora v. DCIT (2004) 269 ITR 133 : 192 CTR 174 : 141 Taxman 187 (All.)]

Where nursery is maintained by carrying out basic operations, and subsequent operations in pots are carried out in continuation of basic operations, then income from such nursery would be agricultural income not liable to tax

Where nursery is maintained by carrying out basic operations, and subsequent operations in pots are carried out in continuation of basic operations, then income from such nursery would be agricultural income not liable to tax. Assessee was engaged in running a nursery. Its main activities were to prepare seedlings on scientific basis, grow plants on prepared beds and after several operations carried on land, viz., cutting, layering, ghootying and inarching, such plants were transferred/transplanted either in suitable containers or replanted in land at an appropriate position considering requirement of sunshine, shade, etc.. Assessee could be said to have carried out basic operations upon land, viz., tilling of land, sowing of seeds, planting, etc., requiring expenditure of human skill and labour upon land and same amounted to agricultural activities. Subsequent operations carried out by assessee were in continuation of basic operations. Once assessee has shown that agricultural operations are carried out, then income from sale of agricultural produce will amount to agricultural income. However, portion of profit, arising from purchase and sale of plants, is assessable to tax even though such plants are maintained in nursery for sometime. (Related Assessment year : 1998-99) – [Sudisha Farm Nursery v. ITO (2004) 88 ITD 638 : (2003) 81 TTJ 714 (Del.)]

All products of land, which have some utility either for consumption or for trade or commerce, if they are based on land, would be agricultural products - Plants sold by assessee-nursery in pots could be said to be result of primary as well as subsequent operations comprehended within term ‘agriculture’ - Therefore, income from plants grown in pots and income from sale of seeds is agricultural income

The assessee was carrying on business of a nursery and various types of plants and seedlings were grown and sold in pots. It claimed that income derived from the sale of plants and seedlings should be treated as agricultural income. The revenue contended that plants were grown directly in pots and that activity could never be regarded as agricultural operation and that 'agriculture' denotes the cultivation of the field and is restricted to cultivation of land in the strict sense of the term. However, the Tribunal being of the view that the plants were not grown in pots directly but only after several operations carried out in the land, allowed the assessee's claim. On reference :

Held : All the products of the land, which have some utility either for consumption or for trade or commerce, if they are based on land, would be agricultural products.

If the plants sold by the assessee in pots were the result of the basic operations on the land on expending human skill and labour thereon and it was only after the performance of the basic operations on the land, the resultant product grown or such part thereof as was suitable for being nurtured in a pot, was separated and placed in a pot and nurtured with water and by placing them in the green house or in shade and after performing several operations, such as weeding, watering, manuring, etc., they were made ready for sale as plants, all these operations would be agricultural operations that involved human skill and effort. Thus, the plants sold by the assessee in pots were the result of primary as well as subsequent operations comprehended within the term 'agriculture' and they were clearly the products of agriculture.

So far as the seeds are concerned, it is not possible for the seeds to exist without the mother plants, and the mother plant is grown on land. It was not the case of the revenue that the seeds were the result of the wild growth and not on account of cultivation by the assessee. The seeds were clearly a product of agriculture and the income derived from the sale of seeds, was agricultural income. (Related Assessment years : 1978-79 to 1982-83) – [CIT v. Soundarya Nursery (2000) 241 ITR 530 (2002) 123 Taxman 372 (Mad.)]

Thus, cultivation of flowers of artistic and decorative value has been held to be an agricultural operation. Therefore, there can be no doubt that if you undertake floriculture and grow flowers for sale even in cities, the income derived from such operations would be exempt from tax.

Needless to add, no tax exemption would be available if you merely trade in flowers grown by others or even if you export such items because the deduction for export profits is no longer available from the assessment year 2005-06. 

During Income-tax Search and Seizure - Rights and duties of Income Tax Department and Persons Searched

The Income-tax Act gives very wide powers to an authorised officer to carry out the search and also to seize documents and unaccounted assets. The authorised officer has the power to:

[A]  Income Tax Department – Rights

        Following are the rights of the officer to whom authority is given for search and seizure:—

(i)  Enter and search any building, etc. [Section 132(1)(i)]

Enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept.

The entire premises should be thoroughly searched to detect books of account and other documents (including books of account and other documents maintained in the form of electronic record), money, bullion, jewellery and other valuable articles or things.

Where free ingress cannot be obtained [Rule 112(4)]

If ingress into such building or place cannot be so obtained it shall be lawful for the authorised officer executing the authority with such assistance of police officers or of officers of Central Government, or of both as may be required, to enter such building or place and search therein and in order to effect an entrance into such building or place, to break open any outer or inner door or window of any building or place, whether that of the person to be searched or of any other person, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance.

If any such building or place is an apartment in actual occupancy of a woman [Proviso to Rule 112(4)]

If any such building or place is an apartment in actual occupancy of a woman, who according to custom does not appear in public, (the authorised officer) shall before entering such apartment give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing and may then break open the apartment and enter it.

If ingress into vessel, vehicle or aircraft cannot be obtained because such vessel, vehicle or aircrafts is moving or for any other reason [Rule 112(4A)]

If ingress into any vessel, vehicle or aircraft authorised to be searched cannot be obtained because such vessel, vehicle or aircrafts is moving or for any other reason, it shall be lawful for the authorised officer with such assistance of police officers or of officers of the Central Government, or of both, as may be required, to stop any such vessel or vehicle or, in the case of aircraft, compel it to stop or land, and search any part of the vessel, vehicle or aircraft, and in order to effect an entrance into such vessel, vehicle or aircraft to break open any outer or inner door or window of any such vessel, vehicle or aircraft, whether that of the person to be searched or of any other person, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance.

(ii) Break open the lock of any door, etc. [Section 132(1)(ii)]

 An authorised officer is empowered to break open the lock of any door, box, locker, safe, almirah or other receptacle when the keys thereof are not available. In such circumstances, he should first demand the keys from the owner, occupier, or the person in-charge and allow reasonable time and opportunity for the production of the keys. Only after the authorised officer has satisfied himself that the keys are not available despite all reasonable efforts should he break open the locks. He should in such circumstances, record the fact that the lock had to be broken open, along with his reasons for doing so.

 Where a locksmith is called for this purpose, his full name, address, time of arrival and leaving the premises alongwith the sum of money paid for his services should be noted down. The note should be signed by the authorised officer, the occupant of the place or person in-charge and the witnesses to the search. This should be appended to the panchnama and made a part thereof.

 Rule 4 provides that If ingress into such building or place cannot be so obtained it shall be lawful for the authorised officer executing the authority, with such assistance of police officers or of officers of the Central Government, or of both, as may be required, to enter such building or place and search therein and in order to effect an entrance into such building or place, to break open any outer or inner door or window of any building or place, whether that of the person to be searched or of any other person, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance.

Allowing access to searching officer by opening box, locker etc. [Rule 112(4B)]

 The authorised officer may require any person who is the owner or has the immediate possession, or control, of any box, locker, safe, almirah or any other receptacle situate in such building, place, vessel, vehicle or aircraft to open the same and allow access to inspect or examine its contents and where the keys thereof are not available or where such person fails to comply with any such requirement may cause any action to be taken including the breaking open of such box, locker, safe, almirah or other receptacle which the authorised officer may deem necessary for carrying out all or any of the purposes specified in the authority issued under sub-rule (2).

(iii) Search any person who is to get in or to go out [Section 132(1)(iia)]

The authorised officer has the power to search any person who has got out of, or is about to get into, or is inside the building, place, vessel, vehicle or aircraft. He may do so if he has reason to suspect that such person has secreted about his person, any books of account, other documents, money, bullion, jewellery or other valuable ariticle or thing. Personal search should, however, not be carried out in an indiscriminate and routine manner. When such a search involves female, it should be carried out only by another female with strict regard of decency.

(iv) Require any person who is found to be in possession or control of any books of account or other documents maintained in the form of electronic record [Section 132(1)(iib)]

Require any person who is found to be in possession or control of any books of account or other documents maintained in the form of electronic record as defined in section 2(1)(t) of the Information Technology Act, 2000 to afford the authorised officer the necessary facility to inspect such books of account or other documents.

KEY NOTE

Person defaulting under section 132(1)(iib) shall be liable to rigorous imprisonment for a term which may extend to two years and shall also be liable to fine. [Section 275B]

(v) Seize any such books of accounts, documents, money, bullion, etc. [Section 132(1)(iii)]

The authorised officer should apply his mind and broadly determine as to what books of account and documents are required to be seized. Detailed inventories should be prepared of cash, bullion, jewellery and other valuable articles and things found in the course of the search, whether seized or not. It is significant to mention in this connection that cash and other assets found in the course of the search can be seized only these represent undisclosed income or property.

Detailed inventories should also be prepared of all the books of account and documents found as a result of the search, whether seized or not. It is necessary to record the exact place from where the books of account and documents were found as it may be relevant to establish their ownership later on. Marks of identification in the form of the authorised officer’s signatures with date and seal should be placed on documents and books of account. Pages of documents should be numbered consecutively and mentioned in the inventory. Blank pages should be cancelled and numbered. Signatures of witnesses and the person from whose possession the books of account and documents have been found should be obtained. Separate inventories should be made of the books of account and documents found and seized and books of account and documents found but not seized.

Where both duplicate set of books of account and regular books of account are found, the authorised officer should seize both the sets. Documents and books of account pointing to an economic offence or violation should be seized.

Statement recorded under section 132(4) and the explanation offered by the person to whom the books of account and documents belong, the person in occupation of the premises or the person who wrote the books of account or documents or dealt with them (like, the accountant of the owner) could also help in deciding whether the books of account and documents should be seized or not.

Identification marks on packages and copy of list

The authorised officer shall place or cause to be placed the bullion, jewellery and other valuable articles and things seized during the search in a package or packages which shall be listed with details of the bullion, jewellery and other valuable articles and things placed therein; every such package shall bear an identification mark and the seal of the authorised officer or any other income-tax authority not below the rank of Income-tax Officer and the occupant of the building, place, vessel, vehicle or aircraft, including the person in-charge of such vessel, vehicle or aircraft, searched or any other person in his behalf shall also be permitted to place his seal on them. A copy of the list prepared shall be delivered to such occupant or person.

However, from 01.06.2003, any bullion, jewellery or other valuable article or thing being stock-in-trade of the business found as a result of search shall not be seized but the authorised officer shall make a note or inventory of such stock-in-trade of the business.

 

(vi)  Place marks of identification on any books or other documents or make or cause to be     

        made extracts or copies therefrom [Section 132(1)(iv)]

To place identification marks on such books of account and documents as may be found in the course of search and as he may consider relevant to or useful for the proceedings under the Income Tax Act and to make a list thereof together with particulars of the identification marks.

 

(vii)  Make a note or an inventory of such money, bullion, jewellery or other valuable article of thing [Section 132(1)(v)]

To make inventory of any undisclosed money, bullion, jewellery or other valuable articles or things found, whether seized or not.

(viii) Deemed Seizure [Second proviso to Section 132(1)]

Where it is not possible or practicable to take physical possession of any valuable article or thing due to its volume, weight or other physical characteristics or due to its being of dangerous nature, the authorised officer may serve an order on the owner (or the person who is in immediate possession thereof) that he shall not remove, part with or otherwise deal with it, except with the previous permission of the authorised officer.

KEY NOTE

(a) Provision of deemed seizure shall not apply in case of stock-in-trade.

(b) Person defaulting in second proviso to clause (1) of section 132, shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine also. [Section 275A]

(ix)  Police Assistance [Section 132(2)]

The authorized officer may requisition the services of any police officer or any officer of the Central Government or both to assist him for the purposes of clause (1) and clause (1A) of section 132 and it shall be the duty of every such officer to comply with such requisition.

If ingress into such building or place cannot be so obtained it shall be lawful for [the authorised officer] executing the authority, with such assistance of police officers [or of officers of the Central Government, or of both,] as may be required, to enter such building or place and search therein and in order to effect an entrance into such building or place, to break open any outer or inner door or window of any building or place, whether that of the person to be searched or of any other person, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance. [Rule 4]

 

(x)   Restraint order [Section 132(3)]

The authorised officer may, where it is not practicable to seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing [For reasons other than those mentioned in the second proviso to section 132(1)], serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this sub-section. This subsection shall not be deemed to be seizure of such books of account, other documents, money, bullion, jewellery or other valuable article or thing under clause (iii) of section 132(1).

Section 132(3) envisages a situation where seizure is not practicable. In such cases the authorised officer is empowered to serve an order on the owner of the person who is in immediate possession or control of the article that he shall not remove, part with or otherwise deal with such article except with the prior permission of such authority. However, exercise of such authority does not amount to seizure. On the basis of restraint order passed under section 132(3), searches would be kept alive and operative for as long as the authorised officer pleases.

Person defaulting in section 132(3) shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine also. [Section 275A]

(xi) Record statement – Examination on Oath [Section 132(4)]

The authorized officer may, during the course of the search and seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income Tax Act, 1922 or under Income-tax Act, 1961.

The examination of any person may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Act.

(xii) To call for the assistance of technical experts like valuers etc.

The authorised officer, during the course of the search operation may take the services of approved valuers for immediate valuation of jewellery found.

[B]   Income Tax Department – Duties

(i)   To show the authorisation immediately on entry, to any adult member in the premises and take his signature along with date and time.

Search warrant is required to be shown and not required to be served

A Search warrant is required to be shown to the person being searched and his signature is obtained confirming the fact that it has been shown to him. The search warrant is not required to be served on the person being searched – [Subir Roy v. S.K. Chattopadhyay (1986) 158 ITR 472 : 29 Taxman 13 (Cal.)]

 

(ii)  Show their Identity Cards.

(iii) Offer of their personal search by the members of the search  party

The members of the search party should offer themselves for search by the person whose premises, etc., is being searched and recording the fact of the personal search separately.

Personal search should be done in the presence of the witnesses. Search of the lady members of the search party can be made only by a lady present in, or occupying, the premises.

(iv) All the exit points of the premises are fully covered to prevent any possibility of throwing away of any material etc.

To ensure that all the exit points of the premises are fully covered to prevent any possibility of throwing away of any material etc. the occupants of the premises should be requested to lock all cupboards, etc., and hand over all the keys to the leader of the search party.

(v)  To immediately take control of all the telephones including mobile phones, fax machines

• Where the premises being searched has telephones, intercom, Telex, FAX, public address or computer systems, the leader of the search party should take over their control.

• Where the premises being searched has telephones, intercom systems, telex systems, FAX, public address systems or computer systems with Internet or network facility etc., there is no such communications through them between any person occupying the premises and any other person, inside or outside the premises as would jeopardise the purpose and conduct of the search.

• Where the premises being searched has a computer, no one gets an opportunity to manipulate the system or damage it or erase any data stored therein.

(vi)  To conduct the search in the presence of atleast 2 witnesses. [Rule 112(6)]

 A search and seizure under the Act has to be carried out in the presence of at least two respectable inhabitants of the locality where the search and seizure is conducted. Those respectable inhabitants are witnesses to the search and seizure and are known as ‘panchas’.

(vii)  Not to threaten, abuse or use any indecent language against the person searched.

(viii) Not to get provoked and maintain a cool and calm temperament and to be alert.

(ix)  To avoid using the items of personal use of the assessee like Bed, T.V. etc. and also avoiding making the private calls from the assessee’s telephone.

(x) Decline the assessee’s offer of food or refreshment politely in order to avoid any possible drugging

No food or refreshment should be accepted from any occupant or the premises being searched as it would be improper to accept such hospitality. Secondly, there is also a risk of the members of the search party being drugged.

(xi) Children should not be prevented from going to school

To allow the school going children to attend the school, however, their school bags should be searched to ensure that they do not contain any documents, locker keys, valuables, etc.

(xii) To allow the assessee and other occupants of the premises to take their meals and medicines at the normal time and also allowing the old members of the family to take rest at their normal hours.

(xiii) Leave the premises only after informing the assessee. Not to leave the premises without informing the assessee.

Other steps to be taken by the authorised officer, the leader of the search party

(a) The authorised officer, the leader of the search party along with other members of the party should work as a team.

(b) There is optimum utilisation of available manpower and that the search is conducted in an efficient, fair and orderly manner.

(c) Money, assets and documents etc., are not thrown out of the premises or taken out of the premises or are not destructed or damaged in any manner by any occupant, being searched.

(d) No outsider (except a medical practitioner, in case required), should be allowed to enter the premises during the course of the search operations.

(e) Where the premises being searched is an office, only those employees who are likely to be of use in explaining or producing the relevant documents etc., should be allowed to remain in the premises.

(f) Movements of servants, drivers, other employees etc., should be restricted to the minimum and if they are allowed by the authorised officer to leave the premises, their personal search should be taken before they leave.

(g) The occupant or person in-charge of the building, place, vessel, vehicle or aircraft or any other person acting on his behalf should be permitted to be present throughout the search. However, the aforesaid persons are not entitled to have their legal/tax advisors to be present during the search.

If during the course of the search any evidence of an illegal activity leading to an offence under any of the following statutes or any other law is discovered, the concerned authorities are immediately informed so that they can take appropriate action against the offenders:—

(i) The Antiques and Art Treasures Act, 1972;

(ii) The Arms Act, 1959;

(iii) The Wild Life (Protection) Act, 1972; and

(iv) The Foreign Exchange Management Act, 1999.

 

[C]   Rights of the person searched

        The Wanchoo Committee  recommended :

“We would like the Department to ensure that the action of its officers in the matter of searches and seizures does not leave any room for complaint and whenever any officer is found, in his misplaced enthusiasm, to err and overstep the limits of reasonableness, he should be promptly and adequately dealt with.” (para. 2.41).

 (i)   Production of Search Warrant

       Assessee can see the warrant of authorisation duly signed and sealed by the issuing authority.

(ii)  Production of evidence of identity of officers of search team

 Assessee can verify the identity of each member of the search party before the start of the search and on conclusion of the search.

 Sometimes the authorised officers or the person accompanying them do not possess the identity card. As an alternative, they should carry and produce some other documents to prove their identity, e.g, a certificate attesting their signatures. The certificate should be issued by a senior officer in-charge of the search or by an immediate superior. In a case where there is no proof of identity, the assessee would be within his right to refuse the ingress.

(iii)  To insist on personal search of ladies being taken only by a lady, with strict regard to decency.

(iv)  A lady occupying an apartment being searched has a right to withdraw before the search party enters, if, according to custom, she does not appear in public [Proviso to Rule 112(4)]

Proviso to Rule 112(4) provides that, if any such building or place is an apartment in actual occupancy of a woman, who according to custom does not appear in public, the authorised officer shall, before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing and may then break open the apartment and enter it.

 

(v)    To have at least two respectable and independent residents of the locality as witnesses [Rule 112(7)]

The search shall be made in the presence, of the witnesses aforesaid and a list of all things seized in the course of such search and of the places in which they were respectively found shall be prepared by [the authorised officer] and signed by such witnesses; but no person witnessing a search shall be required to attend as a witness of the search in any proceedings under the Indian Income-tax Act, 1922 (11 of 1922), or] the Act unless specially summoned.

 

(xiv)  Right of presence during search [Rule 112(8)]

         The occupant of the building, place, vessel, vehicle or aircraft searched, including the person in charge of such vessel, vehicle or aircraft, or some person on his behalf, shall be permitted to attend during the search and a copy of the list prepared under rule112 (7) shall be delivered to such occupant or person. A copy thereof shall be forwarded to the Chief Commissioner or Commissioner, and, where the authorisation has been issued by any officer other than the Chief Commissioner or Commissioner, also to that officer.

 

(vi)  Right to Medical Aid

A person under search can ask for medical aid during the proceedings of search in case he is not feeling well and he requires medical aid. He can call his family doctor to look after him and on the advice of doctor, if required, he may be admitted to hospital. (vii) To allow the children to go to school, after checking of their bags.

 (xv)  Right to worship

         He is entitled to observance of his worship at the usual time even if a search takes place during the time of such worship.

(viii) To have the facility of having meals, etc., at the normal time.

(ix)   Right to leave the spot of search

        One is entitled to attend to his normal business or profession but this is subject to the fact that the assessee has to be present during the course of search for furnishing information or replying to questions regarding the acquisitions of the articles or the books of account found during the course of the search. After answering such questions or making his statement one can leave the spot of search.

However, in some cases, the refusal to permit the assessee to leave the premises has been the subject of a major controversy. The decision in the case of L. R. Gupta v. Union of India (1992) 194 ITR 32 : (1991) 59 Taxman 305 (Delhi) is quite relevant in this context.

        In fact, in the case of L.R. Gupta, Delhi High Court observed that not permitting the assessee to attend the court amounts to confinement in the house or arrest of a person for which there is no provision under the Income-tax Act. SLP has been granted by the Supreme Court and reported in (1992) 194 ITR (St.) 239.

        The petitioner was a senior advocate of the High Court.  On 22.03.1991 a search took place at the residence of the petitioner and even after recording of the statement of petitioner had concluded at 10.30 AM, he was not allowed to come to the High Court so as to attend to the cases in which he had been engaged. Further, the Act does not give any power to the Income-tax Department to arrest an individual. The department certainly has the power of recording the statement of a person in accordance with law. The petitioner could, therefore, be legitimately required to be present for the purpose of recording his statement. Once his statement was recorded there was no reason or justification for the Officers of the department exercising jurisdiction which they did not possess, viz., preventing the petitioner from attending to his work. Therefore, a writ of mandamus was to be issued quashing the impugned authorisation and also the further action which had been taken by the department pursuant to the said authorisation including the seizure of all the documents, cash and jewellery. The respondents are directed to return the said documents, cash and jewellery, seized by them, to the petitioners within two weeks from today. – [L. R. Gupta v. Union of India (1992) 194 ITR 32 : (1991) 59 Taxman 305 (Del.)]

 

In this context, the recommendations of The Chelliah Committee was as follows:

        “Since the Income Tax Department does not have the power to arrest and the ground rules announced on the floor of the Parliament in 1987 specifically lay down that the incometax authorities shall have no power to arrest, the general practice of the search party preventing an assessee whose premises are searched from leaving the building to attend to his work must be discontinued. After the person has made the statement required, he should be allowed to leave” [Para 10.79(c)].

(ix) To inspect the seals placed on various receptacles, sealed in course of search and subsequently at the time of reopening of the seals.

(x)   Rights of person searched towards recording of statements

 Every person who is examined under section 132(4) has a right to ensure that the facts so stated by him have been recorded correctly. The raided person may also decline or object to the recording of the statement at a late hour of the night or in early morning, on health ground or on grounds of mental and physical exhaustion as under such condition he may not be able to recollect facts or furnish categorical replies. In spite of objection if a statement is recorded, he may insist on recording his objection.

  Every person who is examined under section 132(4) has a right to ensure that the facts so stated by him have been recorded correctly.

(xi)   To have a copy of the panchanama together with all the annexures

The respectable inhabitants who are witnesses to the search and seizure and the documentation of what they witness is known as the ‘panchnama’. A panchnama is nothing but a document recording what has happened in the presence of the witnesses. The person searched has a right to ask a copy of panchnama together with all annexures.

 

(xii)  To have a copy of any statement that is used against him by the Department.

(xiii) To have inspection of the seized books of account, etc., or to take extracts therefrom in the presence of any of the authorised officers or any other person empowered by him.

 

[D]  Duties of person searched

(i)    To allow free and unhindered ingress into the premises [Rule 3]

Any person in charge of or in any building, place, vessel, vehicle or aircraft authorised to be searched shall, on demand by the officer, authorised to exercise the powers of search and seizure under section 132 (hereinafter referred to as the authorised officer) and on production of the authority, allow him free ingress thereto and afford all reasonable facilities for a search therein.

(ii)  To see the warrant of authorisation and put signatures on the same.

(iii) To identify all receptacles in which assets or books of account and documents are kept and to hand over keys to such receptacles to the authorised officer.

(iv) To identify and explain the ownership of the assets, books of account and documents found in the premises.

(v) To identify every individual in the premises and to explain their relationship to the persons being searched. He should not mislead by impersonation. If he cheats by pretending to be some other person or knowingly substitutes one person for other, it is an offence punishable under section 416 of the Indian Penal Code.

(vi) Not to allow or encourage the entry of any unauthorised person in the premises.

(vii) Not to remove any article from its place without notice or knowledge of the authorised officer. If he secrets or destroys any document with the intention of preventing the same from being produced or used as evidence before the Court or public servant, he shall be punished with imprisonment or fine or both, in accordance with section 204 of the Indian Penal Code.

(viii) To answer all questions truthfully and to the best of his knowledge. He should not allow any third party to either interfere or prompt while his statement is being recorded by the authorised officer. In doing so, he should also keep in mind that—

(a) If he refuses to answer a question on a subject relevant to the search operation, he shall be punishable with imprisonment or fine or both, under section 179 of the Indian Penal Code.

(b) Being legally bound by an oath or affirmation to state the truth or affirmation to state the truth, if he makes a false statement, he shall be punishable with imprisonment or fine or both under section 181 of the Indian Penal Code.

(c) Similarly, if he provides evidence which is false and which he knows or believes to be false, he is liable to be punished  under section 191 of the Indian Penal Code.

(ix) To affix his signature on the recorded statement, inventories and the panchnama.

(x) To ensure that peace is maintained throughout the duration of the search, and to co-operate with search party in all aspects so that the search action is concluded at the earliest and in a peaceful manner.

(xi) Similar co-operation should be extended even after the search action is over, so as to enable the authorised officer to complete necessary follow-up investigations at the earliest.

Assessee may not insist for the presence of his counsel at the time of search proceedings and the examination of a person
Assessee may not insist for the presence of his counsel at the time of search operation as he does not have legal right to insist the presence of his counsel at the time of search operations. Search proceedings are the investigation proceedings and are conducted in the presence of two independent witnesses.

Presence of counsel during search and seizure proceedings

v  The Counsel is entitled to advise and discuss the matter with client.

v  The Counsel cannot obstruct the conduct of proceedings in any manner.

v  Counsel cannot interfere in the recording of the statement.

v  The Counsel cannot suggest any answer. - [K. T. Advani v. State (1986) 60 Comp Cas. 603 (Del)]

 

Points to be taken care of

(i)   Not to remove goods put under prohibitory order under section 132(3).

(ii)  Never lie to mislead on facts (IPC section 416).

(iii) Not to remove or destroy any article from the place being searched (IPC section 204).

(iv) Never refuse to answer. You may request to refer matter to concerned person/accounts.

(v)  Reply exactly what is asked.

 

If required, search and seizure can continue for days but at same time due regard to human dignity and value cannot be ignored

Section 132 of the Income-tax Act, 1961 read with sections 2(d), 12 and 16 of the Protection of Human Rights Act, 1993 - If required, search and seizure can continue for days, but at same time due regard to human dignity and value cannot be ignored. During search conducted at premises of respondent No. 3 there was interrogation carried out for 42 hours commencing at 9.30 a.m. on 08.09.2010 till 3.30 a.m. on 10.09.2010; respondent No. 3 and his family members were made to remain awake when it was time for sleep - Respondent No. 3 made a complaint before Human Rights Commission alleging that during search and seizure operation raiding party committed various acts of omission and commission including violation of his human rights - Commission allowed complaint of respondent and held that respondent/ complainant would be entitled to monetary compensation and asked department to submit its response as to why monetary compensation be not awarded to complainant recoverable from salary of concerned officials of department. Since there was no possible justification to continue interrogation and keep respondent No. 3 awake till 3.30 a.m. on second night of search; and since no reason had been assigned as to why interrogations could not have been deferred till morning of next day, order passed by Human Rights Commission as to violation of human rights of respondent No. 3 was to be upheld. However, since no opportunity was given to officials to countenance charge of violation of human rights, in absence of an opportunity to defend themselves against such charge in an enquiry, Commission erred in issuing notice to officials to show cause or respond as to why penalty may not be levied for awarding compensation to complainant. [Partly in favour of assessee and partly in favour of Revenue] - [Chief Commissioner of Income-tax (CCA) v. State of Bihar Through The Chief Secretary (2012) 205 Taxman 232 : 18 taxmann.com 70 (Pat.)]