Allahabad H.C : This writ petition has been filed by Shri Abdul Sattar. The petitioner’s premises were searched on 23rd July, 1986, under s. 132 of the IT Act, 1961 (“the Act”).

High Court Of Allahabad

Abdul Sattar & Ors. vs. CIT

Section Art. 226, Art. 132(3)

R.K. Gulati & K.C. Agrawal, JJ.

Civil. Misc. Writ Petn. No. 791 of 1986

11th March, 1987

R. K. GULATI, J.:

This writ petition has been filed by Shri Abdul Sattar. The petitioner’s premises were searched on 23rd July, 1986, under s. 132 of the IT Act, 1961 (“the Act”). During the search, only books of account and documents were seized but no cash, bullion, jewellery or other valuable articles were seized. The authorised officer, on the date of search, also passed three separate orders under s. 132(3). These orders were addressed to the managers of three different banks where some persons named in those orders, being the family members of the petitioner, held certain accounts in their names. By these orders, the ITO ordered the banks not to allow operation of these accounts till further orders from him. Besides the seizure of books of account and documents, a key of a bank-locker found in the premises searched was also seized. Initially, the writ petition was filed seeking mandamus from this Court that the respondents be restrained from taking any proceedings in pursuance of the search and seizure and also for a direction that the respondents be restrained from passing any order against the petitioner with reference to the seizure effected by the ITO.

At the time when this writ petition was filed, the period of 120 days contemplated for making an order under s. 132(5) of the Act had not expired. After the expiry of the aforesaid period, the petitioner made an application seeking amendment of the writ petition with the prayer for a further relief, namely, that the respondents be directed to return forthwith the books of account and other documents seized from the petitioner’s premises during the aforesaid search.

The respondents have filed their counter-affidavit and a supplementary counter-affidavit-inopposition to the reliefs sought by the petitioner.

We have heard learned counsel for the petitioner as well as learned standing counsel. The petitioner’s counsel urged that the books of account and documents seized could be retained by the Department only up to 180 days from date of seizure and that period having expired during the pendency of this writ petition pending admission before this Court, the retention of the books of account and documents is now without jurisdiction and is illegal. The petitioner is entitled to the return of the books of account and documents forthwith. Another point urged in support of the same relief was that the authorised officer who conducted the search and seizure was a person other than the AO of the petitioner. In such a situation, it was obligatory for the authorised officer to have handed over the books of account and documents seized within 15 days of the seizure to the AO of the petitioner. This has not been done. For this proposition, he referred to the provisions of s. 132(9A). According to counsel, retention of the books, etc., by the authorised officer is wholly without jurisdiction. There is no force in any of the submissions made on behalf of the petitioner. In the supplementary counter-affidavit filed on behalf of the Department, a copy of the order dated 15th Jan., 1987, passed by the CIT has been filed. By this order, the AO has been authorised to retain the books of account and documents till 30th Dec., 1987. It is not disputed that such retention could be granted by the CIT under s. 132(8). Being confronted with this position, learned counsel for the petitioner urged that the extension of time granted by the CIT is not for good and valid reasons. We do not think so. The extension was sought on the ground that the books of account and documents seized are required for completion of assessment proceedings pending against the petitioner. This cannot be said to be an irrelevant ground.

Another submission of the petitioner that the books of account and documents were not handed over to the AO is also misconceived and is based on incorrect facts. From a perusal of the order dt. 15th Jan., 1987, it is apparent that the extension for retention of books of account and documents beyond 180 days was sought by the AO of the petitioner and not by the authorised officer. The contention that the books of account and documents were not handed over to the AO does not appear to be correct.

In any case, it is not necessary for us to go into further details inasmuch as the petitioner has an alternative remedy to go before the Board against the CIT’s order granting extension as provided under s. 132(10) of the Act. The petitioner can file objections before the Board against retention of books, etc., by the AO. The petitioner can take all his objections before the Board as may be open to him in law against the order of the CIT including those taken before us. We do not see and justification to interfere with the order of the CIT under Art. 226 of the Constitution.

The next submission of the petitioner is that orders of restraint issued to the bank managers are not liable to be sustained. The argument is that no order under s. 132(5) has been passed. The period of 120 days from the date of the raid within which such an order could be made has expired. Therefore, the prohibitory orders issued to the managers of the three banks are of no avail as no order can now be passed under s. 132(5). For the same reasons, according to the petitioner, he is entitled to the return of the key of the bank-locker taken in custody by the ITO during the raid.

Learned counsel for the Department took us through the averments in the writ petition and in the amendment application. He argued that the petitioner has claimed no relief against the restraint order nor are there any clear averments to that effect in the petition. Another argument is that excepting one savings account, all other bank accounts, in respect of which prohibitory orders have been made, are in the names of persons other than the petitioner who have not come forward with any complaint before this Court. Therefore, the petitioner is not entitled to any relief on this ground also.

In our opinion, the objections raised on behalf of the Department are well-founded and the petitioner is not entitled to any relief. That apart, the validity of an order under s. 132(3) is not dependent upon passing of an order under s. 132(5). The jurisdiction to pass an order under s. 132 (5) is dependent where any money, bullion, jewellery or other valuable articles or things are seized under sub-s. (1) or sub-s. (1A) of s. 132. The prohibitory order under s. 132(3) is not within the sweep of s. 132(5). Therefore, in our opinion, the validity of the orders under s. 132(3) will not be affected merely because no order under s. 132(5) has been passed. Moreover, the petitioner’s grievance, as urged before us above, can appropriately be raised before the CIT or before the AO and it would be within their jurisdiction to decide the objections of the petitioner in accordance with law.

13. What we have said above will equally apply to the demand of the petitioner for the return of the key of the bank-locker.

For the reasons aforesaid, this Writ petition is dismissed summarily.

[Citation : 173 ITR 516]

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