2023 (10) TMI 1551 - HC - Income Tax

Search and seizure under s.132 quashed where satisfaction note and recorded reasons for warrant were not produced, raising bad faith

HC held the search and seizure under s.132 invalid because the satisfaction note authorising the warrant was not produced despite prior Tribunal and HC ... Search and seizure action taken u/s 132 - issuance and authorisation of the search warrant u/s 132(1) - absence of the satisfaction note forming the basis for issuance of the search warrant - HELD THAT:- The officer concerned must satisfy the Court about the regularity of his action. If the action is maliciously taken or power under the section is exercised for a collateral purpose, it is liable to be struck down by the Court. If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed. The courts have held that it is only at the stage of commencement of the assessment proceedings after completion of the search and seizure, if any, that the requisite material may have to be disclosed to the assessee. Though it is settled law that while the sufficiency or otherwise of the information cannot be examined by the court in writ jurisdiction, the existence of information and its relevance to the formation of the belief is open to judicial scrutiny because it is the foundation of the condition precedent for exercise of a serious power of search of a private property or person, to prevent violation of privacy of a citizen. It is also a settled law that the court could examine whether the reasons for the belief have a rational connection or relevant bearing to the formation of the belief and search warrant could not be issued merely with a view to making a roving or fishing enquiry. The reasons will have to be placed before the High Court in the event of a challenge to formation of the belief of the competent authority in which event the Court would be entitled to examine the reasons for the formation of the belief, though not the sufficiency or adequacy thereof. Court will examine whether the reasons recorded are actuated by mala fides or on a mere pretence and that no extraneous or irrelevant material has been considered. Such reasons forming part of the satisfaction note are to satisfy the judicial conscience of the Court. (Principal Director of Income-tax (investigation) Vs. Laljibhai Kanjibhai Mandalia) [2022 (7) TMI 639 - SUPREME COURT] Since the satisfaction note which formed the very basis for issuance and authorisation of the search warrant u/s 132(1) has not been made available in spite of a specific direction given by the Tribunal way back on 17.06.2002 and repeated by this Hon’ble Court on 30.06.2023 an adverse inference needs to be drawn in respect of the same especially having regard to the circumstances set out hereinbefore. ISSUES PRESENTED AND CONSIDERED 1. Whether the search and seizure action under Section 132(1) of the Income-tax Act is valid in the absence of the satisfaction note forming the basis for issuance of the search warrant. 2. Whether consequential proceedings (block assessment under Section 158BC, penalty under Section 158BFA, and criminal complaint) predicated on such search can survive if the satisfaction note is not produced. 3. Whether, and to what extent, information or material gathered during an invalid search can be utilized by the revenue in subsequent proceedings to make adjustments to the assessee's income. 4. Whether the Tribunal (ITAT) should be directed to dispose of pending appeal in conformity with the Court's findings and within a specified timeframe. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Validity of search under Section 132(1) in absence of a satisfaction note Legal framework: The power of search and seizure under Section 132(1) is a significant intrusion on privacy and personal liberty and must be exercised strictly in accordance with law; the formation of belief by the competent authority must be supported by contemporaneous reasons (satisfaction note) which can be placed before the Court when challenged. Precedent treatment: The Court applies and follows the principle articulated in the cited Supreme Court authority that courts may not examine the sufficiency or adequacy of information but can examine the existence of information, its relevance to formation of belief, and whether reasons recorded are actuated by mala fides or extraneous considerations. Interpretation and reasoning: The satisfaction note is the foundational document validating exercise of the Section 132 power. Where the revenue does not possess or produce the satisfaction note despite specific directions, an adverse inference as to the regularity of formation of belief reasonably follows. The Court emphasized that reasons must satisfy the judicial conscience and show a rational connection to the belief; absence of the reasons precludes such scrutiny and undermines legality of the search. Ratio vs. Obiter: Ratio - the unavailability/non-production of the satisfaction note renders the search action illegal because it prevents judicial scrutiny of the formation of belief that is the precondition for exercising Section 132 power. Obiter - general observations on mala fides and on courts' role in scrutinizing reasons may have wider applicability but are supportive of the holding. Conclusion: The search under Section 132(1) is held invalid in the circumstances where the satisfaction note has not been produced. Issue 2 - Consequences for proceedings predicated on the invalid search (block assessment, penalty, criminal complaint) Legal framework: Proceedings and orders that are predicated on the existence of a valid search and seizure derive their validity from the legality of that search; if the foundational action is invalid, consequential orders may be vitiated. Precedent treatment: The Court applies established principles that an unlawful exercise of power can render subsequent orders void; it relies on the reasoning that the search's invalidity taints proceedings founded upon it. Interpretation and reasoning: Given that the block assessment order, penalty order and criminal complaint were all predicated on the search, and given the non-production of the satisfaction note, the Court found that those orders cannot survive. The failure to make available the satisfaction note despite earlier directions justified drawing an adverse inference and quashing proceedings that depend on the validity of the search. Ratio vs. Obiter: Ratio - consequential orders founded on an invalid search and seizure are quashed. Obiter - none additional on remedy beyond quashing in these facts. Conclusion: The block assessment, penalty order and the criminal complaint were quashed as they were predicated on an invalid search. Issue 3 - Use of information obtained during an invalid search in subsequent proceedings Legal framework: Distinction between legality of the search itself and the admissibility/use of information obtained thereby; revenue may, in appropriate proceedings, rely upon information or material lawfully available or otherwise usable under law to make adjustments to income. Precedent treatment: The Court recognizes the revenue's contention, treated as meritorious, that even if a search is held invalid the material gathered may still be used in subsequent proceedings to the extent permissible by law. Interpretation and reasoning: While invalidating the search and quashing the proceedings predicated upon it, the Court clarified that its order does not preclude the revenue from initiating appropriate proceedings and utilizing information or material (subject to legal limitations) to make adjustments to the assessee's income. The Court accepted that the assessee disputes that any new material was obtained, but the judgment preserves the revenue's statutory entitlement to use permissible material in proper proceedings. Ratio vs. Obiter: Ratio - an order quashing proceedings for invalid search does not ipso facto bar the revenue from using information gathered in further proceedings where legally permissible. Obiter - clarificatory remarks on scope of use of material and the assessee's factual dispute regarding novelty of material. Conclusion: The invalidity of the search and quashing of proceedings does not preclude the revenue from instituting appropriate proceedings and using information/material as permissible by law to make income adjustments. Issue 4 - Direction to the Tribunal to dispose pending appeal within a fixed time Legal framework: Supervisory power to direct expeditious disposal in conformity with judicial determinations and to ensure effective implementation of the Court's order. Precedent treatment: The Court exercised its administrative and supervisory jurisdiction to give timeline directions to the Appellate Tribunal for final disposal in terms of the Court's order. Interpretation and reasoning: In order to give effect to the judgment and to avoid protracted litigation, the Court directed the Income Tax Appellate Tribunal to dispose of the pending appeal within 12 weeks of filing of the order in the ITAT registry, ensuring that appellate proceedings align with the Court's conclusions. Ratio vs. Obiter: Ratio - a direction for timely disposal of the pending appeal in terms of the judgment is integral to implementation; Obiter - none additional. Conclusion: The Tribunal was directed to dispose the pending appeal within 12 weeks in terms of the Court's order.