Commissioner of Income-Tax Vs. Jawahar
Lal Rastogi  INSC 135 (7 May 1970)
07/05/1970 SHAH, J.C.
CITATION: 1970 AIR 1651 1970 SCR (1) 581 1969
SCC (2) 227
Income tax Act, 1961, as amended by Finance
Act 1965, s. 132(8)-Seizure of documents and retention beyond 180 days-No
record of reasons by I.T.O. or approval of Commissioner of such
retention--Legality of retention.
On September 14, 1964 the Income tax Officer
called upon the assessee to furnish within 10 days statements relating to four
assessment years ending on March 31, 1960. The assessee did not furnish the
information by the 19th and on that date on the report of the Income-tax
Officer, the commissioner authorised the Income tax officer to search the
premises of the. On September 21st and 22nd the premises were searched and a
large number of documents were seized and retained till May 1966, that is, for
a period of 19 months.
In a writ petition field by the, assessee,
the High Court, following its own decision in Seth Bros. v. C.I.T., 62 I.T.R.
44 held that the search was 'indiscriminate and beyond the scope of s. 132 of
the Income-tax Act. 1961.
In appeal to this Court,
HELD : (i) The decision relied on by the High
Court was overruled by this Court in I.T.O. v. Seth Bros., 74 I.T.R.
836, but it was held that the power of search
must be exercised strictly in accordance with the law and only for the purposes
for which the law authorises it to be exercised. Whether the action of the
Commissioner in a particular case amounted to indiscriminate search and beyond
the scope of s. 132 would depend on the evidence in the case [583 E; 584 E-F]
(2)In the present case, there was no order of the authorities recording reasons
for retaining the documents seized beyond 180 days, nor was there any approval
of the Commissioner for such retention. Therefore the retention was contrary to
the terms of s. 132(8) of the Act as amended 'by the Income-tax (Amendment)
Act, 1965. [585 C-D] (3)Though failure to record reasons by the I.T.O. and want
of approval by the Commissioner for retaining the documents beyond 180 days
were not urged before the High Court as grounds for release of the documents,
when it was found that the documents were retained for 19 months, the department
should have tendered evidence of such record of reasons or approval by the
Commissioner if it was the case of the department that the retention of the
documents could be supported by such reasons or approval. [585 E-C]
CIVIL APPELLATE JURISDICTION: 'Civil Appeal
No. 16 of 1970.
Appeal by special leave from the judgment and
order dated May 22, 1969 of the Allahabad High Court in Civil Misc. Writ No.
588 of 1966.
582 Jagadish Swarup, Solicitor-General, R. N.
Sachthey, and B. D. Sharma, for the appellants.
G. C. Sharma and P. K. Mukherjee, for the
The Judgment of the Court was delivered by
Shah, J. Jawahar Lal Rastogi-hereinafter called 'the assessee-is a Hindu
Undivided Family which carries on the business of money-lending at Lucknow and
is also interested as a partner in different firms engaged in the business of
manufacturing barbed wire, pharmaceuticals, etc.
On September 14, 1964, the Income-tax
Officer, Award, called upon the assesee to furnish within 10 days certain
information with regard to its income and assets. On September 17, 1964 the
Income-tax Officer submitted to the Commissioner of Income-tax a report
requesting that he be authorised to enter and search the premises of, the
assessee. The Commissioner by his order dated September 19, 1964, authorised
entry and search after recording reasons for his belief that it was necessary
to carry out the search. On September 21 and 22, 1964, the premises of the
assessee were searched and a large number of documents were seized and were taken
away to the Income-tax Officer. The Income-tax Officer also prepared
inventories of the ornaments and other goods kept in the premises searched.
After the seizure of the books of account and
other documents the case was fixed for hearing before the Income tax Officer on
several occasions, but no substantial step was taken.
In May 1966 the assessee filed a writ
petition in the High Court of Allahabad challenging the validity of the search
made by the Department contending that it "was illegal and in excess of
the power conferred by s. 132 of the Income-tax Act, 1961" and prayed that
the documents seized may be ordered to be released. The High Court of Allahabad
considered the evidence appearing from the affidavits filed and observed that
in the present case the assessee had established the following
(1) The Income-tax Officer was apparently
interested in investigating transactions prior to 1953. On September 14, 1964,the
assessee was directed to furnish statements relating to four years ending on
March 31, 1960, yet the Commissioner of Income-tax issued letters of
authorisation permitting Income-tax Officer to seize documents relevant to nine
(2)The raid was ordered and organised before
the expiry of the period of the notice;
(3)More than 300 books and registers were
seized during the raid and the Income-tax. Officers carried away thousands of
promissory notes. Some of the documents seized appear to be 583 irrelevant for
assessment purposes and some of them were public documents.
(4)There is reason to believe that all or
almost all the documents found on the premises were seized and carried away by
the Income-tax Officers;
(5)Marks of identification were. not placed
on the documents in spite of-the direction contained in the letters of
authorisation; and (6)The documents seized during the raid were detained by the
Income-tax Officers for 19 months before, the petition was filed.
In the view of the High Court the
circumstances of the case indicated that the Commissioner of Income-tax and the
Income-tax Officers acted beyond "the legitimate scope of s. 132 of the
Act and-there was force in the complaint of the assesse that the Allahabad High
Court in Seth Brothers' Case(1) was over abuse of power conferred on Income tax
authorities by s. 132 of the Act". In reaching its conclusion, the
High-.Court relied upon the judgment of the Allahabad High Court in Seth
Brothers v. Commissioner of Income-tax(1).
In this appeal filed by the Commissioner of
Income-tax with special leave, the Solicitor-General contends that the decision
of the Allahabad High Court in Seth Brothers' Case(1) was overruled by this
Court in Income-tax Officer, Special Investigation Circle "B", Meerut
v. Seth Brothers & Ors.(2) and on , that account the judgment under appeal
is liable to be set aside. In Seth Brothers' case (2) this Court examined the
scheme of s. 132 in some detail and observed "The condition for entry into
and making search of any building or place is the reason to believe that any
books of account or other documents which will be useful for,. or relevant to,
any proceeding under the Act may be found. If the Officer has reason to believe
that any books of account or other documents would be useful for, or relevant
to, any proceedings under. the Act, he is authorised by law to seize those
books of account or other documents, and to place marks of identification
therein, to make extracts or. copies, there from and also to make a note or an,
inventory of any articles or other things found in the course of the search.
Since by the exercise of the power a serious
invasion is made upon the rights, privacy and freedom of the taxpayer, the
power must be (1) 62 I.T.R. 44.
584 exercised strictly in accordance with the
law and only for the purposes for which the law authorises it to be
exercised............. If the conditions for exercise of the power are not
satisfied the proceeding liable to be quashed.............
The Act and the. Rules do not require that
the warrant of authorisation should specify the particulars of documents and
books of account: a general authonsation to search for and seize documents and
books of account relevant to or useful for any proceeding complies with the
requirement of the Act and the Rules. It is for the officer making the search to
exercise his judgment and seize or not to seize any documents or books of
The aggrieved party may undoubtedly move a
competent court for an order releasing the documents seized. In such a
proceeding the Officer who has made the search will b e called upon to prove
how the documents seized are likely to be 'useful for or relevant to a
proceeding under the Act. 1 If he is unable to do so, the court may order that
those document$ be released. But the circumstance ;hat a large number of
documents seized is not a ground for holding that all documents seized are
irrelevant or the action of the officer is mala fide." It must, however,
be stated that the findings that the action of the Commissioner of Income-tax
and the Income-tax Officer amounted to "indiscriminate search" and
was beyond the "legitimate scope of s. 132" depends upon the evidence
in each case and no general rule can be laid down in that behalf.
In the present case the High Court has
noticed two important circumstances: (1) that where as the notice dated
September 14, 1964, required the assessee to furnish statements relating to the
four assessment years ending on March 31, 1960, the Commissioner of Income-tax
authorised search for a period ,of nine assessment years even before the period
fixed by the notice had expired; and (2) that contrary to the plain terms ,of
S. 132(8) the Income-tax Officer retained with him the books of account for a
period exceeding 180 days.
Under s. 132(2) as in force on the date on
which the search and seizure took place stood as follows :
"The books of account or other documents
seized under sub-section (1) shall not be retained by the Inspecting Assistant
Commissioner or the Income-tax 585 Officer for a period exceeding one hundred
and eighty days from the date of the seizure unless the reasons for retaining
the same are recorded by him in writing and the approval of the Commissioner
for such retention is obtained :
By the Finance Act of 1965, sub-s. (2) was re
eracted as sub-s (8) with the modification that for the words "Inspecting
Assistant Commissioner or the Income-tax Officer" the words
"authorised officer" be substituted.
In the present case the premises of the
assessee were searched on September 21 and 22, 1964, and the documents were
retained till May 1966, i.e. for a period, of 19 months. Our attention has not
been invited to any order of the authorities recording reasons for retaining
the documents seized after the expiry of 180 days, nor is there any approval of
the Commissioner for retaining such documents. The retention of the documents
without complying with the requirements of the statute after expiry of the
period of 180 days would be plainly contrary to law.
The Solicitor-General said that it *as not
urged before the High Court that because the authorised officer did not record
reasons and the Commissioner did not approve retention of the documents after
180 days, the revenue, authorities were bound to release the documents. Counsel
submitted that failure to produce evidence on a matter not put in issue may not
be regarded as a ground in support of an order releasing documents. But the
High Court has found that the documents seized during the raid were detained by
the authorised officer for 19 months before the application was filed. If it
was the case of the Department that retention of the documents after the expiry
of 180 days was supported by good and adequate reasons recorded by the
Income-tax Officer and the. approval of the Commissioner as required by the Act
was obtained, such record of reasons and approval would have been tendered in
evidence. It cannot be said that the attention of the parties was not directed
to the circumstance that the Income-tax Officer had failed to comply with the
requirements of the Act.
The order recorded by the High Court must be
sustained on the ground that the documents taken possession of were retained
without authority of law for a period exceeding 180 days contrary to the terms
of s. 132(8) as amended by the Income-tax (Amendment) Act, 1965.
The appeal therefore fails and is dismissed
V.P.S. Appeal dismissed.