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.)]
No comments:
Post a Comment