Friday, 11 March 2022

Consequences of Income Tax search being held as illegal

Section 132 of the Income Tax Act, 1961 prescribes that the competent authorities are empowered to permit the authorized officers to enter, search, break open, seize, place marks of identification and take other steps as contemplated under sub-clauses (i) to (v) of Section 132(1). However, such powers can be exercised against a person upon fulfilment of certain conditions. Rule 112 of the Income Tax Rules, 1962 lays down the procedure, forms of authorization, manner and other procedural effects of carrying out search and seizure action as enumerated under section  132 of the Act.

 Procedure to be followed while carrying out a search are following –

·      A valid search warrant issued by proper authority is a must for search.

·      Recording of valid reasons to believe and non possession of some credible information by virtue of conditions stipulated in clauses (a), (b) and (c) of Section 132 (1).

·      Presence of a lady officer in the search team is not negotiable.

·      Identity of the Income Tax officers/ officials must be disclosed by showing their identity cards and by taking the signatures of the owners on the search warrant before the search identity.

·      Two independent and respected witnesses of the locality should be witnessing the search and seizure and their signatures should be taken on the search warrant.

·      A Panchnama should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to this Panchnama

·      After the search completes, the search warrant should be returned in original to the issuing authority with a report regarding the outcome of the search

·      A copy of the Panchnama should be given to the owner or the person in charge of the premises being searched under acknowledgement.

 

When a search is held as illegal by High Court :

(i) All assets seized to be returned.

(ii) Original copies of books of account or other documents to be released.

(iii) No presumption under section 132(4A)/292C.

(iv) Costs may be awarded.

 

Validity of search cannot be challenged by the assessee during appellate proceedings before CIT(A)/ITAT

Validity of search cannot be examined by CIT(A)/ITAT during appellate proceedings. The validity of search can be examined by High Court in writ  jurisdiction.

Incriminating material found and seized during search which is declared as illegal by the High Court, may be used by the department against the assessee

As per various judicial pronouncements, incriminating material found and seized even in an illegal search action may be used by the income-tax department against the assessee in appropriate proceedings.

Copy of documents or books of account seized in an illegal action can be retained by the department

Copy of documents or books of accounts seized in an illegal action can be retained by the department. Such evidences may be made use of by the department wherever required and deemed appropriate in terms of the law.

No cogent basis for arriving at conclusion that assessee was in possession of jewellery which represented his undisclosed income or property was discernible from satisfaction note, impugned search and seizure was to be quashed and all actions taken pursuant to such search and seizure were to be declared illegal

Search and seizure is a serious invasion on privacy of citizens, and has to be resorted to when there are pre-existing and pre-recorded good reasons to believe that action is called for. Sole ground for action of search and seizure was that Investigation Wing of Income Tax department was in possession of credible information that assessee was in possession of jewellery which represented his undisclosed income or property, however, no cogent basis for arriving at this conclusion was discernible from satisfaction note. Mandatory reasons to believe were not recorded and search authorisation was not obtained prior to interception and conduct of search.Thus, search action was a completely unauthorized and a high-handed action on part of revenue, as mere possession of jewellery ipso facto would not be sufficient for officer to form a belief that same had not been, or would not be disclosed.Moreover, even clause (c) to section 132(1) could not be invoked since assessee was carrying on business of sale and purchase of jewellery and he was legitimately carrying same as his stock-in-trade. Accordingly, search and seizure and ex post facto warrant of authorization issued by respondent revenue under Section 132 was to be quashed and all actions taken pursuant to such search and seizure were to be declared illegal and revenue was to be directed to forthwith return jewellery seized to assessee. [In favour of assessee] – [Khem Chand Mukim v. Principal Director of Income Tax (Inv.) (2020) 423 ITR 129 : 270 Taxman 252 : 186 DTR 145 :113 taxmann.com 529 (Del.)]

 

Authorised officer can search any place mentioned in authorisation where he suspects that books of account belonging to assessee are kept and as such, mere change of address of assessee even being in know how of department by itself would not vitiate or invalidate search conducted under section 132

Search conducted at premises in which assessee may not be carrying on business would not nullify search. Isearch proceedings location of premises is in relation to satisfaction reached by authorities mentioned therein and authorised officer can search any place mentioned in authorisation where he suspects that books of account belonging to assessee are kept and as such, mere change of address of assessee even being in know how of income tax department by itself would not vitiate or invalidate search conducted undersection 132. [In favour of revenue] (Related Assessment years : 2005-06 to 2010-11 – [PCIT (C) Bengaluru v. Associated Mining Co. (2019) 417 ITR 420 : 108 taxmann.com 564 (Karn.)]

 

Validity of authorisation – Initiation of search proceedings was not based upon any information or other material - Authorisation is held to be invalid and quashed [Article 226]

A search was conducted in case of assessee. Assessee filed instant petition challenging authorisation issued under section 132. It was noted that no summons or notice as envisaged under clause (a) of sub-section (1) of section 132 had been issued. - It was also noted that belief of revenue that assessee would not respond to a summons or notice issued as envisaged under clause (b) of sub-section (1) of section 132 was not based upon any information or other material but was based upon conjectures and surmises that assessee would take alibi of lack of jurisdiction on part of respondents. Thus, circumstance envisaged under clause (b) of sub-section (1) of section 132 also did not exist in instant case. Finally, there was nothing on record to indicate that any belief had been formed by competent authority to effect that assessee had in his possession any money, bullion, jewellery or other valuable article or thing which would not have been disclosed by him for purposes of Act. In view of aforesaid, it could be concluded that none of clauses (a), (b), or (c) of sub-section (1) of section 132 was attracted and, thus, impugned authorisation being invalid, search proceedings in question deserved to be quashed. [In favour of assessee] - [Laljibhai Kanjibhai Mandalia v. PDIT (Investigation) (2019) 416 ITR 365 : 309 CTR 330 : 263 Taxman 604 180 DTR 49 : 105 taxmann.com 260 (Guj.)]

 

Invalid search warrant under section 132 issued in name of deceased person cannot invalidate consequential block assessment under section 158BD on legal heir of deceased, as legal heir had participated in proceedings of assessment initiated under section 158BC

Supreme Court dismissed assessee’s SLP against Gujarat High Court judgement upholding validity of block assessment proceedings under section 158BD; Supreme Court noted that search warrant under section 132 was issued on a dead person and assessee, in capacity, as a legal heir participated in block assessment proceedings under section 158BC, subsequently notice under section 158BD was issued on assessee based on information found during search; Rejected assessee’s stand that since the original search warrant was invalid (being issued in the name of deceased), the notice under section 158BD (on ‘other person’) pursuant to search was also invalid, Supreme Court noted that assessee did participate in the assessment proceedings under section 158BC and the issue of invalidity of the search warrant was not raised at any point of time prior to the notice under section 158BD; Supreme Court ruled that “The information discovered in the course of the search, if capable of generating the satisfaction for issuing a notice under section 158BD, cannot altogether become irrelevant for further action under Section 158BD of the Act”; Distinguished assessee’s reliance on co-ordinate bench ruling in A.R. Enterprises and Punjab & Haryana High Court ruling in Rakesh Kumar, Mukesh Kumar. [In favour of revenue] – [Gunjan Girishbhai Mehta v. Director of Investigation (2017) 393 ITR 310 : 294 CTR 14 : 247 Taxman 22 : 80 taxmann.com 23 (SC)]

Issue of warrant of authorisation against the locker of the assessee, without disclosing any material or information stating that locker contained valuable jewellery or other articles representing undisclosed income warrant was unjustified and held to be illegal Consequently, proceedings under section 153A of the Act are also set aside and quashed

In the case of Shah E Naaz Judge v. Addl. DIT, wherein it was held by the Delhi High Court as under:-

“32. In view of the aforesaid discussion, we find merit in the present writ petitions and hold that the warrants of authorization for search and seizure operations in respect of the three lockers in the case of three petitioners are vitiated and illegal. Warrants of authorization against the petitioners are quashed and set aside. Consequently, proceedings under section 153A of the Act are also set aside and quashed. We, however, clarify that we have not commented on evidence, if any, collected during the course of search and whether the said evidence or material can be used in any proceedings initiated by the income-tax authorities in accordance with law. Writ petitions are allowed in the aforesaid terms..”. (Related Assessment years : 2009 -10 to 2014-15) – [Shah E Naaz Judge v. Addl. DIT (2019) 306 CTR 42 260 Taxman 116 : 173 DTR 169 : (2018) 100 taxmann.com 346 (Del.)]

No material or information in possession of authorities giving rise to existence of any circumstances as specified in section 132 – Search illegal and unauthorised

On writ the Court held that : (i) the competent authority had reason to believe and formed his opinion for taking action under section 132 of the Act, based on relevant materials. The conditions for conducting search under section 132 of the Act were fully satisfied in the case of assessees in two of the petitions. The search was valid. (ii) That with regard to the assessees in the third petition, there was no material or information in the possession of the income-tax authorities as required under section 132(1) of the Act giving rise to the existence of any circumstances as specified in clauses (a), (b), (c) of sub-section (1) of section 132 of the Act and the search was illegal and unauthorised. - [D.S. (India) Jewelmart (P) Ltd. v. UOI (2016) 387 ITR 593 (All); Mayank Chaturvedi v. UOI (2016) 387 ITR 593 (All.)]

Search proceedings initiated cannot be declared illegal if there is sufficient material before the Income Tax Authorities on the basis of which satisfaction is arrived at that the assessee has huge undisclosed income

Writ petition was filed by the assessee challenging the legality and validity of the search and seizure operations carried out by the Income Tax Authorities under section 132. High Court dismissed the writ petition and upheld the validity of the search operations on several counts. High Court observed that there was sufficient material before the Income Tax Authorities that the assessee had not disclosed huge income. Further, before the issuance of the warrant of authorisation by the Director of Income Tax to carry out search and seizure, the procedure prescribed under section 132 had been followed. High Court further observed that it need not approve the subjective satisfaction arrived at by the lower authorities. It was sufficient if there are supporting documents with a satisfaction note which is approved before the issuance of a warrant of authorisation for carrying out search and seizure operations.—[Emaar Alloys (P) Ltd. v. DGIT (Inv.) & Ors. (2016) 288 CTR 413: 138 DTR 54 : (2015) 235 Taxman 569 (Jharkhand)]

Tribunal cannot consider validity of search

The satisfaction to be reached by the authority issuing a warrant of authorisation is an administrative function and its validity cannot be called into question by Assessing Officer or Tribunal. - [CIT v. A. K. Bansal (Dr.) (2013) 355 ITR 513 (All.)]

Since pre-conditions had not been satisfied, the warrant of authorisation would have to be quashed, the consequence would be that all proceedings pursuant to the search conducted on 21.01.2011 at the premises of the petitioner would be illegal and, therefore, the prohibitory orders would also be liable to be quashed, accordingly, the jewellery/other articles/documents are to be unconditionally released to the petitioner

In this the court held as under:-

“With regard to the argument raised by the learned counsel for the respondent that there was no need for the competent authority to have any reason to believe and a mere reason to suspect would be sufficient, we may point out that the answer is provided by the fact that the warrant of authorization was not in the name of the DS Group but was in the name of the petitioner. In other words, the warrant of authorization under section 132(1) had been issued in the name of the petitioner and, therefore, the information and the reason to believe were to be formed in connection with the petitioner and not the DS Group. None of the clauses (a)(b) or (c) mentioned in Section 132(1) stood satisfied in the present case and, therefore, the warrant of authorization was without any authority of law insofar as the petitioner was concerned. Had the warrant of authorization been issued in the name of the DS Group and in the course of the searches conducted by the authorized officer, the premises of the petitioner had also been searched, then the position might have been different. But, in the present case, that is not what has happened. The warrant of authorization was in the name of the petitioner and, therefore, it was absolutely necessary that the pre-conditions set out in Section 132(1) ought to have been fulfilled. Since those pre-conditions had not been satisfied, the warrant of authorisation would have to be quashed. Once that is the position, the consequence would be that all proceedings pursuant to the search conducted on 21.01.2011 at the premises of the petitioner would be illegal and, therefore, the prohibitory orders would also be liable to be quashed. It is ordered accordingly. The jewellery/other articles/documents are to be unconditionally released to the petitioner. The writ petition is allowed as above. There shall be no order as to costs.” - [Madhu Gupta v. DIT (Investgation) (2013) 350 ITR 598 : 214 Taxman 246 : 30 taxmann.com 92 (Del.]

Powers – Search and seizure – Authorisation – Recording of satisfaction – Notice under sections 131(1A), 133(6)

If there is sufficient and intangible material available on record, prior to search, based on which the concerned officer has formed the requisite belief under section 132(1), merely because certain other information has been sought for by authorized officer or any other officers mentioned in section 131(1A) the same would not render the search proceedings invalid. It may be possible that notice under section 131(1A) issued after search might itself be invalid but it cannot invalidate search conducted under a valid authorization under section 132(1). In the absence of any specific allegation against any particular officer, notice under section 133(6) cannot be challenged as suffering from malafides. – [Neesa Liesure Ltd. v. UOI (2011) 338 ITR 460 : 245 CTR 634 : 64 DTR 312 (2012) 204 Taxman 86 (Guj.)]


Legality of Search Warrant against a Deceased person - Search warrant issued under section 132 in name of a dead person is invalid and void ab initio and no valid assessment can be made on strength of such an invalid search warrant

M' had died prior to the issuance of search authorization and, thus, the search warrant was issued in the name of a dead person and the panchnama was also prepared in the name of the dead person. Thus, not only the search was invalid, but the authorization for conducting search itself was invalid and void ab initio. Therefore, the order passed by the Assessing Officer under section 158BC(c)/144 was illegal, as the same was passed in consequence of a search warrant which was issued in the name of a dead person. Such search warrant is against the law of natural justice. No valid assessment could have been made on the strength of such an invalid search warrant. Therefore, the order of the Tribunal deserved to be upheld. (Block period from 01.04.1996 to 23.07.2002 -- [CIT v. Rakesh Kumar Mukesh Kumar (2009)313 ITR 305 : (2008) 219 CTR 494 : 178 Taxman 224 : 13 DTR 209 (P&H)]


Search and seizure was held invalid and illegal, consequentially, all actions taken by the appellants on the basis of such illegal search and seizure were quashed

The High Court was of the view that the search and seizure were invalid and illegal. Consequentially, all actions taken by the appellants on the basis of such illegal search and seizure were quashed. The appellants were directed to forthwith return the gold, diamond and jewellery and ornaments seized from the respondents with interest at the rate of 8 per cent per annum on the value of the jewellery and ornaments which the High Court quantified at Rs. 84.68 lakhs from the date of seizure till payment.

Held : Without going into the question as to the payability of interest on the value of goods found by the Court to have been illegally seized, we hold that the appellants are liable to compensate the respondents at least by way of costs. The loss obviously suffered by the respondents during the pendency of the proceedings before the High Court was further aggravated by the delay in complying with the High Court's decision. In the circumstances, we direct the appellants to pay a sum of Rs. 75,000 to the respondents on account of costs which the respondents will accept in full and final settlement of the claim towards the quantum of interest under the impugned order. Such payment is to be made within a period of four weeks. In the event such payment is not made, this appeal will stand dismissed with costs.[DGIT v. Diamondstar Exports Ltd. (2007) 293 ITR 438 : (2006) 156 Taxman 299 (SC)]

Mere information from CBI that cash was found from the possession of an individual cannot justify a search

Mere information from CBI that cash was found in possession of individual, not “Information” for purposes of authorizing Search. A Search based on such information and consequent block assessment not valid. (Related Assessment year : 1986-97) – [UOI v. Ajit Jain & Anr. (2003) 260 ITR 80 : 181 CTR 22 :129 Taxman 74 (SC)]

Allegation that Income Tax Authorities had taken a bribe would not invalidate the search

It was argued that the Inspector of Income-tax Department had acted in an illegal manner in demanding the sum of Rs. 2,80,000. Without in any way reflecting upon the merits of this accusation, even though transcripts of some tape recorded conversation had been produced, these events even if they were assumed to be correct, would not directly affect the legal propriety of the search and seizure under section 132. The latter proceedings would not be invalidated because of a subsequent illegal action. – [Kamal Khosla v. Director of Income Tax: SLP (c.) Nos. 12242-43: (2003) 264 ITR 140 (St.) SLP rejected, (2003) 264 ITR 140 (St.)]

 

Search cannot be resumed after a gap of 14 days

It was held that there is no provision in the Criminal Procedure Code or in the Income Tax Act therein, for postponing the search for such a long period. It is worthwhile to extract the decision of the Kerala High Court, which in clear terms brings out the concept of search and validity of the authorisation issued for the search.

“Similarly, in circumstances not covered under those provisions, it is open for him to pass a prohibitory order under sub-section (3) not amounting to seizure which order will be in force for a period of 60 days after securing the possession of the materials, articles etc., in the aforesaid manner. Action under section 132(3) of the Income Tax Act can be resorted to only if there is any practical difficulty in seizing the item which is liable to be seized. When there is no such practical difficulty, the officer is left with no other alternative but to seize the item, if he is of the view that it represented undisclosed income. Power under Section 132(1)(iii) of the Income-tax Act thus cannot be exercised, so as to circumvent the provisions of section 132(1)(iii) read with section 132(1)(v) of the Income Tax Act. It is open for the authorised officer to visit the place for the purpose of investigation securing further particulars. Under the scheme, the law provides for such procedure. But not when he visits the premises for further investigation for the materials already secured. It does not amount to search as the materials to be looked into and investigated is already known and is the subject-matter of a prohibitory order or a restraint order. Though it is not seizure or deemed seizure, it amounts to deemed possession. What is in your possession is to be looked into to find out, is there any incriminating material. It does not amount to search as understood under section 132 of the Act. It is only because of paucity of time he has gone back and wants to come back and look into the matter leisurely. There is no provision in the Criminal Procedure Code or in the Income-tax Act or the rules for postponing the search for a long period. Then, the concept of search as understood either under the provisions of the Criminal Procedure Code or the Act which are made applicable expressly, would lose its meaning.”—[Dr. C. Balakrishnan Nair v. CIT (1999) 237 ITR 70 (Ker.)]

Illegal search will not invalidate seizure

It was held that illegal search will not invalidate seizure of the articles. In such cases only the court is to scrutinize the evidence carefully. - [Thakursidas Banwarilal v. CIT (1998) 232 ITR 846 (Gau.)]

In Ali Mustafa Abdul Rahman Moosa v. State of Kerala (1994) 6 SCC 569 (SC), a case relating to prosecution under Narcotic Drugs & Psychoptropic Substances Act, 1985, after distinguishing Pooranmal‘s case, it has been held that material found during illegal search cannot be used as evidence to prove possession. Under Narcotic Drugs & Psychoptropic Substances Act, 1985, possession of prohibited substance has to be proved by prosecution beyond reasonable doubt and it was held that due to illegality, possession cannot be proved in the instant case.

 

Mere doubt cannot be the basis

In the case of  L.R. Gupta, who is a Senior Advocate of Delhi High Court, wherein it was held by the Delhi High Court as under:-

“49. As we have come to the conclusion that, in the present case, no reasonable person could have come to the conclusion that the ingredients contained in clause (a)(b) or (c) of section 132 were attracted, therefore, we issue a writ of mandamus quashing the impugned authorisation and also the further action which has been taken by the respondents pursuant to the said authorisation including the seizure of all 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.

50.The petitioners will also be entitled to costs. Counsel’s fee Rs. 1,000.”

[L.R. Gupta v. Union of India (1992) 194 ITR 32 : (1991) 59 Taxman 305 (Del.)]

Enormity of search party is not a valid objection

When in pursuance of information received from Ministry of Finance regarding tax evasion by assessee, competent authority issued authorisation, directing search of petitioner’s premises after due enquiries and reconnaissance, it could be said that conditions precedent for assumption of jurisdiction under section 132 were satisfied. Burden is on petitioner to prove mala fides when he alleges same. It is not necessary to supply search warrant to person concerned before hand. Warrant of authorisation should not specify particulars of documents, etc. Error committed by authorised officer in seizing documents which may later turn but to be irrelevant, will not vitiate proceedings. Any error of judgment on part of officer will not vitiate exercise of power under section 132 where power is exercised bona fide. It is not necessary for authorities to record reasons for authorising search in writing. Exception can not be taken to presence of police personnel at time of search in absence of allegation of use of force or excessive force. - [Subir Roy v. S.K. Chattopadhyay (1986) 158 ITR 472 : 29 Taxman 13 (1987) 64 CTR 191 (Cal)]

 

Authorised officers had acted bona fide therefore, even if there was some irregularity, the action taken is not vitiated

In the case of Naraindas v. CIT, the petitioner contended that the action of the authorised officers in making search and seizure was illegal and out the following irregularities : (i) respectable persons of the locality were not called as witnesses, (ii) inventory of the books of account and documents was not made, (iii) boxes were not sealed, and (iv) ornaments were also seized from the ladies in the family. The Hon’ble Court held as under:

“In our opinion, none of these objections can be reasonably sustained or can make the search and seizure illegal. It is stated in the return that the names of the witnesses were suggested by the petitioners. They wanted that outsiders should not be called as that would have affected their credit and prestige. The petitioners cannot now complain that the witnesses suggested by them were not respectable persons of the locality. As regards the inventory of the books and other documents seized, the return discloses that after the seizure of books and documents, Naraindas said that he was not feeling well and that the work of preparing the inventory could not be carried on. Naraindas requested that the books and documents be kept in a box and that he will himself come next day to Jabalpur and the inventory may then be prepared. It was on this request that the books and documents were kept in a box locked by Naraindas and the department. Similar request was made after the seizure of books of account and other documents of Venkatesh Trading Co. and Maheshwari Lime Works by Y.K. Maheshwari who was present at the time of the search of the business premises of these two concerns which are at the same place. Maheshwari signed the panchnama showing that the documents recovered were put in two boxes which were locked by the department and also by him. The returns clearly state that this was done at the request of the petitioners on the plea that Naraindas was not well. It is, thus, clear that the inventory of the books of account and other documents seized could not be made because of the request made by the petitioners themselves. They cannot now complain that the officers conducting the search did not make the inventory of the books of account and other documents, that were seized, then and there. As regards the objection that ornaments from the ladies were also seized, the fact is denied in the return. In the return it is clearly stated that nothing was seized from the ladies of the family. We are satisfied that none of the objections raised by the learned counsel for the petitioners has any weight. Moreover, as observed by the Supreme Court in the case of ITO v. Seth Brothers (1969) 74 ITR 836 (SC), any irregularity in the course of search and seizure committed by the officers acting in pursuance of the authorisations will not be sufficient to vitiate the action taken provided the officers had in executing the authorisations acted bona fide. In this case we are satisfied that the authorised officers had acted bona fide and, therefore, even if there was some irregularity, the action taken is not vitiated. - [Naraindas v. CIT (1984) 148 ITR 567 : (1983) 14 Taxman 447 (MP)]

Illegality of a search does not vitiate the evidence collected during such illegal search

It was held that though such evidence is not excluded, the same has to be carefully scrutinized:

“It has been often held that the illegality in the method, manner or initiation of a search does not necessarily mean that anything seized during the search has to be returned. After all, in the course of a search, things or documents are required to be seized and such things and documents when seized may furnish evidence. Illegality of the search does not vitiate the evidence collected during such illegal search. The only requirement is that the court or the authority before which such material or evidence seized during the search shown to be illegal is placed has to be cautious and circumspect in dealing with such evidence or material. This is too well-established to necessitate its substantiation by a precedent.”—[Dr. Pratap Singh v. Director of Enforcement (1985) 155 ITR 166 (SC)]

The issue of admissibility of evidence seized during search has also been tested in terms of Article 20 of Constitutuion in Dwarka Prasad Agarwalla v. Director of Inspection and it was held that: “In view of the decision of the Supreme Court in the case of Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940, and the observations of the court at p. 946, it is clear that a person whose house is being searched for gathering the materials as contemplated under sub-section (1) of section 132 is not an accused and, therefore, no question of testamentary compulsion arises.”—[Dwarka Prasad Agarwalla v. Director of Inspection (1982) 137 ITR 456 (Cal)]

 

Even the illegality of the search, seized material may be looked into

Even the illegality of the search, does not vitiate the evidence, collected during such search. The materials searched and seized can still be looked into and relied for the purpose of assessment. - [New Street Oil Mills v. State of Kerala (1978) 111 ITR 463 (Ker)]


Department is not precluded from using the document – Even assuming that the search and seizure were in contravention of the provisions of section 132 of the Income-tax Act, still the material seized was liable to be used subject to law before the income-tax authorities against the person from whose custody it was seized

It was held that, even assuming that the search and seizure were in contravention of the provisions of section 132 of the Income-tax Act, still the material seized was liable to be used subject to law before the income-tax authorities against the person from whose custody it was seized. There is no quarrel with the said legal proposition. In the first place, the provisions relating to the block assessment were not in the statute on the day the said judgment was delivered by the apex Court. Secondly, prior to the incorporation of the provisions of block assessment for an assessment, search was not a condition precedent. It is in that context it was held even if search and seizure is illegal, the material recovered during such illegal search and seizure could be looked into for the purposes of assessment and act, but that is not possible, in case of block assessment. Even if a return is filed in pursuance of a direction issued under the said Chapter and the material secured during search and seizure which is declared as illegal is looked into, still the order of assessment passed in this proceeding would be a nullity because the very initiation of the proceedings is void. Those materials secured in the illegal search and seizure would certainly be made use of the assessment proceedings under the Act other than the block assessment proceedings and, therefore, the contention that the assessment order would not get vitiated because of illegal search and seizure as it is based on the returns filed and the materials secured during the illegal search and seizure is, without any substance. (Related Assessment years : 1969-70, 1970-71) - [Pooran Mal v. Director of Inspection (Investigation) (1974) 93 ITR 505 (SC)]

 

Search and seizure of the books of account was held to be illegal as no reason was recorded by the Commissioner for taking action under section 132 against the petitioner

The Commissioner appeared to be labouring under a great misconnection with regard to the scope of section 132. The seizure of the books of account of a businessman is a serious encroachment upon his fundamental right to carry on business. Such an encroachment, of course, is permitted by law in public interest. But it is necessary that the powers under section 132 as also under section 131 should be exercised strictly in accordance with the law and the principles of natural justice. The assessee asked for the copies of the search warrants and the reasons recorded by the Commissioner for authorising the search. That request was refused. The assessee then applied for inspection. That too was refused by the Commissioner on the ground that there was no provisions permitting the inspection of the documents. This approach of the Commissioner was obviously erroneous. Unless there is a statutory prohibition, a person against whom action is being taken under section 132 is entitled to inspect the record of the proceedings and to obtain copies of the orders passed in those proceedings. If such a right is denied to him, he will not be able to satisfy himself that the action against him is justified and to seek redress against any illegal action taken or order passed. It is well-known maxim that “justice not only should be done, but should be seem to have been done”. An aggrieved person is entitled to know that the requirements of the law have been complied with. Thus, the Commissioner was not justified in refusing to the assessee the inspection of the record or copies asked for by him. In a given case, it might be possible for the Commissioner to treat a particular information or a document as confidential and to withhold its inspection. But, that was not the case of the department in the instant case. Wholesale refusal to grant copies or allow inspection was not justified by law.

Section 132 itself does not require the Commissioner to record any reason unlike section 131 which requires the ITO to record reasons before impounding the documents produced before him. However, rule 12 requires that reasons should be recoded by the Commissioner before issuing warrants of authorization to carry out a search and seizure. Rule 12 has been framed by the Central Board of Direct Taxes in exercise of the powers given to it under sub-section (14) of section 132. These rules, therefore, have statutory force. Any search and seizure made in contravention of rule 12 would thus be illegal. The initial seizure of books of accounts being illegal, their retention would also be illegal. [In favour of petitioner/assessee] - [New Kashmir and Oriental Transport Co. (P) Ltd. v. CIT (1973) 92 ITR 334 (All.)]

 

It was held that where, by and large, the documents seized appear to be such as could lead a reasonable man to believe that they were useful and relevant, the search and seizure cannot be struck down on the ground of absence of application of the mind. The mere presence of a few documents, which may have no bearing, among those seized would not go to show that there was a complete absence of application of mind. - [Zalwant Singh v. R.D. Shah (1969) 71 ITR 550 (Del.)]


Section 132 of the Income-tax Act, 1961, does not require specific mention by description of each particular document which has to be recovered on search. It is for the officer who is conducting the search to decide whether a particular document found on search was relevant for the purpose or not, therefore, there was nothing so illegal in search as to make it wholly without jurisdiction and documents really recovered at search could be utilized for purpose of assessment if they belonged to assessee.

Section 132 does not require specific mention by description of each particular document which had to be discovered at search. Several trading units and one trust was governed by assessees who were members of a family. Commissioner found that firm, constituted by assessees carried out large scale business in manufacture and sale of liquid gold but profits therefrom were not incorporated in accounts books. He issued search warrants in respect of residence and business premises of assessees. it was also found from affidavit of IAC that he had prima facie information that alleged incomes were not accounted. Further, one employee of firm stated that realization from sale of liquid gold was also not accounted for. In view of above there was no reason to doubt that Commissioner had information which led him to issue necessary warrant. Mere fact that some premises were searched for which there was no warrant specifying that place, would not be material when document recovered at those two places which were not mentioned in warrant had no hearing on assessment made. Therefore, there was nothing so illegal in search as to make it wholly without jurisdiction and documents really recovered at search could be utilized for purpose of assessment if they belonged to assessee. - [ITO v. Firm Madan Mohan Damma Mal (1968) 70 ITR 293 (All.)]

Enormity of a search cannot be a ground for condemning the same if the search is otherwise justified

There was information in possession of Commissioner that petitioners had manufactured their books of account and other documents to wipe out real profits made by creating losses arising out of fictitious transactions. He issued warrants of authorisation and written instruction to seize books of accounts and documents disclosing real state of affairs relating to business transaction. In written instruction, Commissioner indicated nature and class of books to be searched for and seized. During search at office premises, books and documents, which were not necessary, were left and certain other books which were necessary for day to day work were returned. Documents found at residence of petitioners were, with consent and approval of petitioners, were brought to office of department. Search for books and documents at petitioners’ office and residence were not carried out indiscriminately and arbitrarily. Written instructions bore ample testimony to fact that Commissioner applied his mind to question of relevancy of books and documents which ITOs were to search for and seize. Therefore, search and seizure was not bad in law. [In favour of the revenue] - [Mamchand & Co. v. CIT (1968) 69 ITR 631 (Cal.)]

 

Mere fact that a few documents, which do not apparently seem to be relevant to any pending proceedings, were seized will not render the search mala fide

Words of section 6 of Amendment Act being very wide, any search made before commencement of Amendment Act shall be deemed to have been made under amended section 132 as if amended section was in force on day search was made. Even searches, which were held by courts to be illegal or unconstitutional will be deemed to have been made under amended section 132 and not under original section 132. Thus, section 6 of Income-tax (Amendment) Act, 1965 which amended section 32 does not infringe Article 14. Petitioners, in writ petitions, alleged that search of their premises and seizure of a large number of documents, were arbitrary and indiscriminate besides being mala fide, and that Commissioner authorised search without applying his mind and with recording any reasons. They prayed that search and seizure be declared illegal and unconstitutional and that seized articles be returned to them. Seizure of a few documents which did not apparently seem to be relevant to any pending proceeding would not render search mala fide. Fact that at time of seizure ITO did not record reasons showing that seized documents were relevant to any proceeding would not vitiate search as there was no statutory requirement to record, at time of search reasons showing relevancy of seized documents to a proceeding. Sub rule (1) of rule 112A is not imperative but is directory and therefore, a notice issued after expiry of 15 days from date of seizure was not illegal. Hence, the petitions were dismissed. [In favour of the revenue] - [Hindustan Metal Works v. CIT (1968) 68 ITR 798 (All.)]

It was held by the Supreme Court that where a search warrant issued by a Magistrate is shown to be defective because he had not applied his mind to the question of issuing it, anything recovered on the basis of such a warrant from the search of a residential house must be returned. - [Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver (1967) 66 ITR 664 : 20 STC 453 : (1968) 1 SCR 148 (SC)]

Test of admissibility of evidence lies in its relevancy and not on how it was obtained

The admissibility of evidence in Courts in India is dependent on its relevancy as per the provisions of Indian Evidence Act. Illegality or impropriety in obtaining the evidence will not affect its admissibility, if it is otherwise relevant.

In Kuruma v. The Queen (1955) AC 197, the Privy Council laid down that if the evidence is admissible, the court is not concerned how it was obtained. The Privy Council observed :”...the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained”. 

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