High Court Of Calcutta
K.R. Modi & Co. vs. Deputy Director Of Income Tax (Investigation)& Ors.
Section 132
Kalyan Jyoti Sengupta, J.
Writ Petn. No. 933 of 2002
30th June, 2004
JUDGMENT
Kalyan Jyoti Sengupta, J. :
The petitioner being a partnership firm and an assessee of the income-tax initially challenged the search warrant dt. 16th Dec., 1999, search and Panchanama dt. 17th Dec., 1999, notice dt. 20th Dec., 2000, order dt. 29th Dec., 2000 and order dt. 14th Dec., 2001, and all proceedings, notices and orders relating thereto and thereunder. When the writ petition was filed the prayer made therein was very relevant. Now, after affidavit-in-opposition having been filed, it appears to me that the challenge against the search warrant and Panchanama dt. 17th Dec., 1999, and notice dt. 20th Dec., 2000, have now become infructuous in view of the stand taken by the Revenue in the affidavit-in-opposition that the proceedings under s. 158BC of the IT Act, 1961 (hereinafter referred to as “the said Act”), as against the petitioner have been dropped. In view of dropping of the proceedings, now, the question remains as to whether seized books of account and documents of the writ petitioner are liable to be returned to the petitioner or not.
2. Mr. Murarka, learned counsel appearing in support of this petition, submits that in view of dropping of the aforesaid proceedings the respondents have no jurisdiction or authority to retain the books of account any more. He further submits even their authority to retain the books of account had and has no legal sanction. Firstly, there has been no lawful authorisation to retain the same after the expiry of the statutory period. Moreover, the purported order of authorisation was never communicated to the writ petitioner. This impugned order of authorisation will have legitimacy when certain conditions are fulfilled. One of them is communication to the noticee of the search warrant and/or the persons affected thereunder. In support of his submission, he has relied on the decision of the Supreme Court in CIT & Ors. vs. Oriental Rubber Works (1984) 38 CTR (SC) 154 : (1984) 145 ITR 477 (SC).
3. He further submits that the person authorising, as it appears from the affidavit-in-opposition, has no jurisdiction to pass any order of authorisation as he is not the officer as contemplated under s. 132(9A) of the aforesaid Act. Therefore, the order of authorisation itself is null and void. In support of his contention, he has referred to a decision of the Supreme Court in CIT & Ors. vs. K.V. Krishnaswamy Naidu & Co. (2001) 168 CTR (SC) 610 : (2001) 249 ITR 794 (SC).
He further contends that in the affidavit-in-opposition no justification has been made out as to why the books of account and documents have been seized. Moreover, in contemplation of proceedings under s. 158BD of the said Act further retention of the books of account and documents are not permissible. He further points out that there is no disclosure as to whether there has been any authorisation after 2002. Therefore, as of today, there is nothing on record to show that there is any valid authorisation for retention of the books of account. Even if any such order is passed, the same might have been done for their record purpose but nothing has been communicated. In the absence of communication such an order will be vitiated in terms of the Supreme Court judgment, as above.
Mr. Ghose, learned senior counsel appearing on behalf of the Revenue, contends that under the provisions of the statute the Revenue is empowered to retain the books of account for any purpose or any proceedings. In this case, the Department found a technical mistake to proceed against the partnership firm under s. 158BC, as such, the said proceedings have been withdrawn and/or dropped. The Department has now decided to proceed against the writ petitioner under s. 158BE. Under the provisions of s. 158BE, sub-s. (2), limitation for proceedings will come to an end after the expiry of the time as mentioned therein. He submits further that the order of authorisation has lawfully been passed upto 2004. His next contention is that even if search and seizure are held to be invalid, but the material collected therefrom can be used for any other proceedings and there is no illegality. In support of his case he has relied on a decision of the Supreme Court in Pooran Mal vs. Director of Inspection (Inv.) 1974 CTR (SC) 25 : (1974) 93 ITR 505 (SC). Under such circumstances, he contends that there is no question of release of the books of account and documents seized from the writ petitioner.
Having heard the respective contentions of learned counsel, the admitted position in this case is that the partnership firm was not a noticee of the search warrant and seizure nor any Panchanama was executed. It is a settled position of law, the partnership firm atleast for the purpose of the IT Act, 1961 (hereinafter referred to as “the said Act”), stands on a different footing from that of its partners, as it is a separate juristic legal entity. The place of the business of the partnership firm was not at the premises where search and seizure were conducted. Accordingly, I hold the search of the partnership firm and seizure of its books of account on the strength of the warrant were wholly an illegal and unauthorised act. It appears from the stand taken in the affidavit-in-opposition that the search was really intended to be conducted against Sahsi Modi, K.R. Modi and K.R. International (P) Ltd. While conducting lawful searches if it is revealed that the books of account and documents of a third party are recovered, then these can be utilised for the purpose of block assessment under s. 158BD of the said Act.
In this case originally, proceedings under s. 158BC were intended to be initiated, but necessary notice was served upon the firm-petitioner who is not the noticee of the search warrant. This proceeding in my view was wholly unjustified as under the scheme of the said section in this case neither the noticee of the search and seizure and warrant could be proceeded nor the third party.
Therefore, the contention of the Revenue, dropping proceeding against this partnership/petitioner is wise and justified. Now, the question remains as to whether the books of account and the materials seized from the partnership firm can be retained by the Revenue or not. Mr. P. K. Ghosh, learned senior counsel, has tried to justify this retention on the strength of the provision of s. 158BE, sub-s. (2) of the said Act, which I think should be reproduced hereunder : “158BE(2).—The period of limitation for completion of block assessment in the case of the other person referred to in s. 158BD shall be— (a) one year from the end of the month in which the notice under this Chapter was served on such other person in respect of search initiated or books of account or other documents or any assets requisitioned after the 30th day of June, 1995, but before the 1st day of January, 1997; and (b) two years from the end of the month in which the notice under this Chapter was served on such other person in respect of search initiated or books of account or other documents or any assets are requisitioned on or after the 1st day of January, 1997. Explanation 1 : In computing the period of limitation for the purposes of this section, the period— (i) during which the assessment proceedings is stayed by an order or injunction of any Court, or (ii) commencing from the day on which the AO directs the assessee to get his accounts audited under sub-s. (2A) of s. 142 and ending on the day on which the assessee is required to furnish a report of such audit under that sub-section, shall be excluded. Explanation 2 : For the removal of doubts, it is hereby declared that the authorisation referred to in sub-s. (1) shall be deemed to have been executed,— (a) in the case of search, on the conclusion of search as recorded in the last Panchanama drawn in relation to any person in whose case the warrant of authorisation has been issued; (b) in the case of requisition under s. 132A, on the actual receipt of the books of account or other documents or assets by the authorised officer.”
I do not find any substance in the submission of Mr. Ghosh as above. The heading of the section is clear enough to hold that the said section is wholly inapplicable, for admittedly, no fresh proceeding under s. 158BD has been initiated, rather, the proceeding initiated earlier has been dropped, as such, completion of block assessment in the said section is out of the question. The section does not authorise to retain books of account in contemplation of block assessment for the indefinite period, rather, it prescribes a time-limit to complete the assessment. In this case had the Revenue intended to proceed against the firm-petitioner, it should have served notice to proceed under s. 158BC r/w s. 158BD of the Act. No such notice has been served.
Accordingly, I hold that the respondents have no jurisdiction or authority to retain the books of account or other material seized. Therefore, I direct the respondents to return the books of account and materials seized. This shall be done within a period of 15 days from the date of communication of this order after making inventory of the seized documents, books of account and articles. It would be open for the Revenue to retain xerox copies of the documents and books of account at their own cost, if so advised. The Revenue shall pay the costs of this application assessed at 100 G.Ms. to the petitioner, since in my view search and seizure against the partnership firm and also retention of the books of account and other materials are without jurisdiction and an unauthorised act.
The inventory as above shall be done within a period of a fortnight from the date of communication of this order. Let the xeroxed signed copy of the operative portion of this judgment and order shall be made available to the petitioner on making their application for obtaining xeroxed certified copies of this judgment and order.
Mr. Nizamuddin, learned counsel appearing for the Revenue, prays for stay of operation of the judgment and order. Such prayer is opposed by Mr. Murarka.
Having considered prayer, I am of the view that no stay is required to be granted.
[Citation : 272 ITR 587]
