TaxTMI 
TaxTMI 
TaxTMI 
2002 (5) TMI 29
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....a supplementary deed was also executed to conform to the provisions of section 13(5) of the Act whereafter, the Commissioner granted exemption in terms of section 80G of the. Act by an order dated January 1, 1980. It is stated that such exemption had been continued and the claims made by the trust under section 11 of the Act had been accepted. For the assessment year 1997-98, the assessment proceedings were completed by the Assessing Officer, Ward No. 1, Panipat. Returns for the assess ment years 1998-99 and 1999-2000 were also filed before the said authority. A survey is purported to have been conducted, inter alia, in the premises of the hospital run by the trust, where Dr. Nalini Mahajan is employed. According to the petitioners, Dr. Nalini Mahajan does not have any other source of income except interest, dividend and salary. The assessment proceedings up to 2000-2001 had been completed by the Assessing Officer. During the course of survey operations, at the instance of the officers conducting the survey, search warrants were issued by the Additional Director (Inv.), Delhi. Pursuant to or in furtherance of the said purported search warrants, the premises of the petitioners wer....
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....New Delhi, vide order dated February 14, 2001. On February 22, 2001, the Deputy Director of Income-tax (Inv.), i.e., respondent No. 2, informed the petitioner that the Director of Income-tax (Inv.), i.e., respondent No. 1, has granted approval to him to retain the seized documents, books of account in the case of the Mahajan group of cases up to June 30, 2001. On or about March 5, 2001, the petitioner requested respondent No. 2 for copies of the reasons recorded for retention of the books of account and documents and a copy of the approval granted by respondent No. 1. However, no reply to the above letter dated March 5, 2001, was received till May 15, 2001. The request, however, was complied with only on May 15, 2001, when this court in the course of hearing of Civil Writ Petition No. 2999 of 2001 of Dr. Nalini Mahajan asked the respondents as to why reasons recorded by the statutory authority had not been supplied. Respondent No. 2 vide letter dated May 18, 2001, supplied to the petitioner the reasons recorded, inter alia, stating that approval for extension of retention of the books of account and documents has been asked for as block assessments were to be initiated. On May ....
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.... November 11, 1997, the modified rehabilitation scheme after certain modifications was approved by the BIFR on OTS basis, which also envisaged grant of certain concessions by the Income-tax Department under sections 41(1), 72 and 80 of the Act. After implementation of the said rehabilitation scheme, there was substantial improvement in the performance of the petitioner-company and its net worth turned from negative to positive and after considering the matter and report of the monitoring agency, the BIFR discharged the company from the purview of the SICA. On or about February 14, 2001, respondent No. 1, i.e., the Commissioner of income-tax, Rohtak, transferred the case of the petitioner-company from Rohtak to Central Circle-20, New Delhi, with effect from February 22, 2001. Thereafter, assessments for the assessment years 1995-96 to 1999-2000 were completed accordingly. On August 28, 2000, respondent No. 1 issued an authorisation warrant under section 132(1) of the Act for carrying out search and seizure operations against the petitioner-company's factory and office at G.T. Road, Panipat. Respondents Nos. 1 and 2 also issued authorisation for search and seizure operations at th....
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....ade a reference to its earlier letters written in this behalf and in response thereto on March 27, 2001, respondent No. 3 informed the petitioner-company that respondent No. 1 had granted approval for retention of the books of account and documents till June 30, 2001. On June 1, 2001, the petitioner-company's representative appeared before respondent No. 5 and requested for photocopies and they were asked to come on June 7, 2001, on which date the process of grant of photocopies started. The petitioner was asked to file a return for the block period starting April 1, 1990, to November 9, 2000, by respondent No. 5 vide notice under section 158BC of the Act. C.W.P. No. 3336 of 2001: The first petitioner is a company registered and incorporated under the Companies Act. It is engaged in the business of investment and export of various commodities by sub-letting the properties, dealing in real estate, etc. Its assessment up to 1999-2000 was completed. On August 28, 2000, the Director of Income-tax (Investigation) (in short, "the Director") issued a warrant of authorisation under section 132 of the Act directing search and seizure operations in the matter of the petitioner-company w....
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...."reasonable belief arrived at by the appropriate authority for the purpose of issuance of warrant in the case of section 132(1) of the Act was not irrational, mala fide or arbitrary, but the power was exercised bona fide by the appropriate authority, which was cogently supported by information and material. It has been contended that 25 per cent. of the rights of property No. 27, Kasturba Gandhi Marg, New Delhi, has been sold to Verka Investment Pvt. Ltd. for Rs.31 crores and they continued to share 35 per cent. share in the building even after receiving the payment. It was contended that a notification has been issued by the Central Board Of Direct Taxes (in short, "the Board") on September 6, 1989, in terms whereof the Director has been authorised to perform the functions in respect of the whole of India. It has been contended that Pan Foods Ltd. and Mahajan Industries Ltd. have a common office in New Delhi. According to the respondents, the assessees were offered to obtain photocopies of the documents on February 26, 2001, and March 7, 2001, by letters dated February 22, 2001, and March 5, 2001, but they did not attend the office of the Director on those days. It has been a....
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....t be based on objective criteria and not subjective satisfaction and the former is a pre-condition to make search or seizure, which having been absent in the instant case, the entire proceeding must be held to be wholly illegal and without jurisdiction. In support of the said contentions, strong reliance has been placed by learned counsel on Balwant Singh v. R.D. Shah, Director of Inspection, Income tax [1969] 71 ITR 550 (Delhi); janak Raj Sharma v. Director of Inspection (Investigation) [1995] 215 ITR 234 (P & H); Harmel Singh v. Union of India [1993] 204 ITR 334 (P & H); S.C. Sibal v. CIT [1977] 106 ITR 102 (P & H); Dr. C. Bala krishnan Nair v. CIT [1999] 237 ITR 70 (Ker) and CIT v. K.V. Krishnaswamy Naidu and Co. [2001] 249 ITR 794 (SC). Submissions of the Revenue: Mr. Sanjiv Khanna, learned counsel appearing on behalf of the Revenue, on the other hand, argued that the issue of authorisation under section 132 of the Act being purely an administrative act in terms whereof no right of the parties is determined the same should not be equated with quasi-judicial function. Reference in this connection has been made to State o Himachal Pradesh v. Raja Mahendra Pal, AIR 1999 SC 1786....
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....on the decision of ITO v. Seth Bros. [1969] 74 ITR 836 (SC) and Dr. Partap Singh v. Director of Enforcement [1985] 155 ITR 166 (SC) and Narayan R. Bandekar v. Second ITO [1989] 177 ITR 207 (Bom). Issues: The principal questions, which arise for consideration, in view of the rival contentions of the parties as noticed hereinbefore, would be: (a) Whether the Additional Director (Inv.) has the requisite jurisdiction to authorise any officer to effect search and seizure in purported exercise of power conferred upon him under section 132 of the Act? and (b) Whether there had been sufficient materials before the appropriate authority to satisfy himself that the authorisation for search could be issued? (c) Whether the notification dated September 6, 1989, is valid in law? (d) Whether reasons for retention of books of account can be recorded after a period of 15 days? (e) Whether the provisions of section 132(9A) are directory in nature? Statutory provision: Before dealing with the aforesaid questions, some of the relevant provisions of the Act, may be noticed: "Section 2(21): 'Director-General or Director' means a person appointed to be a Director-General of Income-tax or, as t....
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.... Joint Director or joint Commissioner as may be empowered in this behalf by the Board, in consequence of information in his possession, has reason to believe that- (a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922 (11 of 1922), or under sub-section (1) of section 131 of this Act, or a notice under sub-section (4) of section 22 of the Indian Income-tax Act, 1922, or under sub-section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account, or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents ei....
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....re he has reason to believe that any delay in getting the authorisation from the Chief Commissioner or Commissioner having jurisdiction over such person may be prejudicial to the interests of the revenue: Provided further that where it is not possible or practicable to take physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of a dangerous nature, the authorised officer may serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it, except with the previous permission of such authorised officer and such action of the authorised officer shall be deemed to be seizure of such valuable article or thing under clause (iii)..." "Section 132(8) and (8A): (8) The books of account or other documents seized under sub-section (1) or sub-section (1A) shall not be retained by the authorised 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 Chief Commissioner....
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....c) any place in respect of which he is authorised for the purposes of this section by such income-tax authority, who is assigned the area within which such place is situated or who exercises jurisdiction in respect of any person occupying such place, at which a business or profession is carried on, whether such place be the principal place or not of such business or profession, and require any proprietor, employee or any other person who may at that time and place be attending in any manner to, or helping in, the carrying on of such business or profession-- (i) to afford him the necessary facility to inspect such books of account or other documents as he may require and which may be available at such place, (ii) to afford him the necessary facility to check or verify the cash, stock or other valuable article or thing which may be found therein, and (iii) to furnish such information as he may require as to any matter which may be useful for, or relevant to, any proceeding under this Act. Explanation.--For the purposes of this sub-section, a place where a business or profession is carried on shall also include any other place, whether any business or profession is carried on the....
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....s an order of assessment and determine the tax payable by him on the basis of such assessment; (d) the assets seized under section 132 or requisitioned under section 132A shall be retained to the extent necessary and the provisions of section 132B shall apply subject to such modifications as may be necessary and the references to 'regular assessment' or 'reassessment' in section 132B shall be construed as references to 'block assessment'." "Section 158BD: Mere the Assessing Officer is satisfied that any undisclosed income belongs to any person, other than the person with respect to whom search was made under section 132 or whose books of account or other documents or any assets were requisitioned under section 132A, then, the books of account, other documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against such other person and the provisions of this Chapter shall apply accordingly." Findings: Reg. questions Nos. (a) and (c): The question as to whether the said notification dated September 6, 1989, is valid or not must be judged having regard to the statu....
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....ned in the interpretation clause. Before proceeding to deal with the questions raised, we may notice that the writ petitions of Mr. Rakesh Mahajan, Pan Foods Ltd. and Mahajan Industries Pvt. Ltd. have been filed after a long delay, i.e., on August 8, 2001, July 13, 2001, and May 22, 2001, respectively. These writ petitions have been filed after the reasons for passing of an order under section 132(9A) of the Act had been communicated. So far as the correctness or otherwise of the said orders are concerned, appeals will be maintainable under section 132(10) of the Act and in that view of the matter apart from the question of jurisdiction, we need not to go into the merits of the matter. In Arti Gases v. Director of Income-tax (Investigation) [2001] 248 ITR 55 (Guj), in the fact situation obtaining therein, it was held: "The learned advocate for the petitioners has also tried to show certain anomalies in the calculations made by the officers of the respondents. We do not desire to go into those anomalies because the petitioners can very well represent their cases before the Assessing Officer or the concerned officer as and when the assessment is to be made. We are sure that the A....
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....asmuch as the latter authorities would have also come within the pur view of the definition of the Director-General or the Director. If the contention of Mr. Khanna is accepted, then even an authority, who is lower in rank, may also issue authorisation in favour of an officer of higher rank, which situation cannot, in our opinion, be countenanced. Furthermore advisedly, Parliament has used the article "the" before the authority specified for exercising this statutory power. Words which are used in declaring the meaning of other words may also need interpretation and the Legislature may use a word in the same statute in several different senses. In that view of the matter, it would not be correct to contend that the expression as defined in the interpretation clause would necessarily carry the same meaning throughout the statute. The question came up for consideration recently before the apex court in State of Maharashtra v. Indian Medical Association [2002] 1 SCC 589; AIR 2002 SC 302; [2001] 10 AD 74, wherein the apex court was concerned with the term "management" occurring in the Maharashtra University of Health Sciences Act, 1998. Therein a question arose as to whether the Stat....
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....can be assigned to the word mana gement in section 64 of the Act. In para. 3 of the regulation, the essentiality certificate is required to be given by the State Government and permission to establish a new medical college is to be given by the State Government under section 64 of the Act. If we give the defined meaning to the expression 'management' occurring in section 64 of the Act, it would mean the State Government is required to apply to itself for grant of permission to set up a Government medical college through the university. Similarly it would also mean the State Government applying to itself for grant of essentiality certificate under para. 3 of the regulation. We are afraid the defined meaning of the expression 'management' cannot be assigned to the expression 'management' occurring in section 64 of the Act. In the present case, the context does not permit or require to apply the defined meaning to the word 'management' occurring in section 64 of the Act. However, after the Government run medical college is established, necessarily there has to be management or body of persons to run the affairs of the medical college and for such a situation the expression 'management....
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....sue authorisation for search and seizure operation all over India. A statutory power is conferred by the Board in favour of a particular statutory authority. The scope and purport of the said definition, thus, cannot be extended to other authorities in whose favour the power has not been delegated. It is not in dispute that the Additional Director is also lower in rank than the Director. It is now well-settled that when a power is given to do a certain thing in a certain manner, the same must be done in that manner or not at all. All other proceedings are necessarily forbidden (see Nazir Ahmad v. The King-Emperor, AIR 1936 PC 253; [1936] 63 IA 372; Viteralli v. Saton 3 Law Ed. 1012 and Ramana Dayaram Shetty v. International Airport Authority of India [1979] 3 SCC 489; AIR 1979 SC 1628). A delegation of power is essentially a legislative function. Such a power of delegation must be provided for by the statute. The director himself for certain matters is the delegating authority. He, unless the statute expressly states, cannot sub-delegate his power to any other authority. In A.K. Roy v. State of Punjab, AIR 1986 SC 2160, the law is stated in the following terms: "A careful anal....
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....d as ultra vires. Sonu Systems (P.) Ltd. v. Chairman, CBDT [2001] 250 ITR 268 (Delhi) whereupon Mr. Khanna placed strong reliance, cannot be said to have any application in the instant case. Therein, having regard to an innocuous omission to delete the word "Deputy", it was held that the said defect did not vitiate the entire search or seizure. It is well-known that a decision is an authority for what it decides and not what can logically be deduced therefrom. (see Union of India v. Dhanwanti Devi [1996] 6 SCC 44). In CIT v. K. Ramakrishnan [1993] 202 ITR 997 (Ker), it has been stated: "The words used by judges in their judgments are not to be read as if they are words in an Act of Parliament (see the judgment of Lord Reid in the appeal from the above decision--Goodrich v. Paisner 1957 AC 65 (HL), at page 88). We have to remember that the words in a judgment are not used after weighing the pros and cons of all conceivable situations that may arise. They constitute just the reasoning of the judges in the particular case, tailored to a given set of facts and circumstances. What is made relevant and binding is only the ratio decidendi and no more. The careful drafting--perhaps wit....
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....d (see Mittal Engg. Works (P.) Ltd. v. Collector of Central Excise [1997] 1 SCC 203). In Dias on Jurisprudence, fifth edition, page 143, it is stated- 'Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. Rationale and dicta tend to shade into each other. The former have law-quality and are binding on lower courts; dicta, too, have law quality but are not binding at all. Vis-a-vis a higher court even the ratio decidendi of a lower court decision has only persuasive force like that of a dictum. It has been pointed out that some dicta are so authoritative that the distinction between ratio and dictum is reduced to vanishing point. Dicta, which have no force, are propositions stated by way of illustration or on hypothetical facts. Greater difficulties attend rulings of law which are subsequently relegated to the status of dicta by interpretation. The distinction in such cases between ratio and dictum is but a device employed by subsequent courts for the adoption or rejection of doctrine expressed in previous cases according to the inclination of the judges. An example would be the treatment of Lord Atkin's neighbour ....
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....nd Municipal Corporation of Delhi v. Gurnam Kaur [1989] 1 SCC 101, it has been held by the Calcutta High Court in Jaya Sen v. Sujit Kumar Sarkar [2000] 1 ILR A and N 145 'It is now well-known that a decision is only an authority for what it decides and not what can logically be deduced therefrom. It is also wellknown that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process.' In A-One Granites v. State of U.P., AIR 2001 SC 1203; [2001] AIR SCW 848, it is observed: 'The first question which falls for consideration of this court is as to whether the question regarding applicability of rule 72 of the Rules in relation to the present lease is concluded by the earlier decision of this court rendered in Prem Nath Sharma v. State of U.P., AIR 1997 2252; [1997] 4 SCC 552; AIR 1997 SCW 2121; [19971 All LJ 1201. From a bare perusal of the said judgment of this court it would be clear that the question as to whether rule 72 was applicable or not was never canvassed before this court and the only question which was considered was whether there was violation of the said rule. This question was considered by the Court of Appeal in La....
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....en globally made in the Income-tax Act: ----------------------------------------------------------------------------------- From To ----------------------------------------------------------------------------------- Assistant Commissioner Assistant Commissioner or Deputy Commissioner Assistant Director Assistant Director or Deputy Director Deputy Commissioner Joint Commissioner Deputy Director Joint Director". ----------------------------------------------------------------------------------- It would, therefore, be evident that by reason of the said circular letter also, it has been categorically stated that it would be necessary to am....
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....ed that the hospital premises contains several incriminating books of account and documents which indicate that Dr. Nalini Mahajan is siphoning off huge amount from the hospital for personal use which have not been reflected in her return. A search operation in the premises of Mahajan group is already going on and, therefore, seizure of documents found in the hospital premise and in the room of Dr. Nalini Mahajan will be necessary. I agree that action under section 132(1) in respect of Dr. Nalini Mahajan Mother and Child Hospital, D-59, Defence Colony, is necessary. Shri Gulshan Raj has also reported a locker in the name of Dr. Nalini Mahajan in New Delhi Vaults, Defence Colony and it is possible that the locker may contain incriminating documents and undeclared assets. Therefore, action under section 132(1) in respect of this locker is also necessary. Two warrants signed." From a perusal of the minutes dated August 29, 2000, it appears that the authorised officer has further been informed about a locker in New Delhi belonging to Dr. Nalini Mahajan and it was believed that the locker contained some incriminating documents and undisclosed assets. The Additional Director merely ag....
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....er the belief falls under sub-clause (a), (b) or (c) of section 132(1). No search can be ordered except for any of the reasons contained in sub-clause (a), (b) or (c). The satisfaction note should itself show the application of mind and the formation of the opinion by the officer ordering the search. If the reasons which are recorded do not fall under clause (a), (b) or (c), then the authorisation under section 132(1) will have to be quashed. In Seth Bros.'s case [1969] 74 ITR 836 the apex court has stated the law thus: "The section does not confer any arbitrary authority upon the revenue officers. The Commissioner or the Director of Inspection must have, in conse quence of information, reason to believe that the statutory conditions for the exercise of the power to order search exist. He must record reasons for the belief and he must issue an authorisation in favour of a designated officer to search the premises and exercise the powers set out therein. 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 ....
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....be giving naked powers to the authorities to order search against any person and is prone to be abused. This cannot be permitted in a society governed by the rule of law." In Vindhya Metal Corporation v. CIT [1985] 156 ITR 233 (All), it was observed, at page 239, that: "It is settled that the existence or otherwise of the condition precedent to exercise of power under these provisions is open to judicial scrutiny. The absence of the condition precedent would naturally have the effect of vitiating the authorisation made by the Commissioner in either of the two provisions and the proceedings consequent thereto. While the sufficiency or otherwise of the information cannot be examined by the court, the existence of information and its relevance to the formation of the belief can undoubtedly be gone into. Also, whether on the material available with the Commissioner, any reasonable person could have arrived at the conclusion that a search, seizure or requisition should be authorised is a field open to judicial review" The said decision was affirmed by the apex court in CIT v. Vindhya Metal Corporation [1997] 224 ITR 614, 618 in the following words: "In Vinod Kumar Jaiswal, according....
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....urisdiction over such person within a period of 15 days and thereupon, the powers exercisable by the authorised officer under sub-section (8) or sub-section (9) shall be exercisable by such Income-tax Officer. In the instant case, the petitioner was being assessed at Panipat. The authorising officer, therefore, ought to have complied with the provisions of the said statute. The submission of Mr. Khanna, however, is that the Madras High Court in K.V. Krishnaswamy Naidu and Co. v. CIT [1987] 166 ITR 244 has held that the said provision is for the benefit of the Revenue to enable an Assessing Officer to pass order under section 132(5) within the statutory period but as the said provision is not applicable for searches after July 1, 1995, the object of the said provision has to be examined in the light of the new provisions, in terms whereof, the provisions for block assessments have been made. The submission of learned counsel cannot be accepted for more than one reason. The seized documents are required to be handed over to the Incometax Officer for a certain purpose. The statute provides that the received documents should be returned to the assessee within the time specified theref....
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....h books or documents have been seized or the person to whom such books or documents belong becomes entitled to the return of the same, unless the reasons for any extended retention are recorded in writing by the authorised officer/the concerned Income-tax Officer and approval of the Commissioner for such retention is obtained. In other words, two conditions must be fulfilled before such extended retention becomes permissible in law: (a) reasons in writing must be recorded by the authorised officer or the con cerned Income-tax Officer seeking the Commissioner's approval, and (b) obtaining of the Commissioner's approval for such extended retention and if either of these conditions is not fulfilled such extended retention will become unlawful and the concerned person (i.e., the person from whose custody such books or documents have been seized or the person to whom those belong) acquires a right to the return of the same forthwith. It is true that sub-section (8) does not in terms provide that the Commissioner's approval or the recorded reasons on which it might be based should be communicated to the concerned person but in our view since the person concerned is bound to be materially....
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....r who could pass an order under sub-section (5) of section 132 could not retain the seized documents, etc., beyond 15 days and, therefore, he could not moot a proposal under sub-section (8) for further retention of the documents beyond 180 days." In Thanthi Trust v. CIT [1987] 167 ITR 397, this court has observed: "It is clear from this judgment that the Supreme Court has spelt out the conditions which must be fulfilled before the extended retention of books or documents seized in a search conducted under section 132 of the Act becomes permissible in law. One of the conditions precedent mentioned in the aforesaid decision is that the reasons in writing recorded by the authorised officer or the Income-tax Officer concerned seeking the Commissioner's approval must be communicated to the assessee from whom the books or documents have been seized. Admittedly, the reasons were not communicated and the petitioner had to go in appeal. In view of the aforesaid decision, the further retention of the seized documents and the books of account thus becomes illegal and unauthorized." Yet again in Survir Enterprises v. CIT [1986] 157 ITR 206 (Delhi) it has been held: "It is indeed unfortuna....