TaxTMI 
TaxTMI 
1998 (3) TMI 112
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....ems for which inventory was produced. The contention which has been raised before me is that the action of the authority in seizing the books of account in the garb of the power under section 131(3) of the Act is misuse of the provisions of section 133A of the Act. A number of other contentions have also been raised which I do not think it proper to consider at this stage. Section 133A of the Income-tax Act reads thus : "133A. (1) Notwithstanding anything contained in any other provision of this Act, an income-tax authority may enter--- (a) any place within the limits of the area assigned to him, or (b) any place occupied by any person in respect of whom he exercises jurisdiction, 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....
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.... Commissioner and section 136 says that proceedings before the income-tax authorities are to be considered as judicial proceedings. Various sections of the Chapter confer different powers and they are not overlapping each other. Section 133A with which the present controversy has to be adjudicated deals with power of survey. Power to survey is different from that of seizure under section 132. Seizure is taking possession contrary to the wishes of the owner of the property, whereas in survey the possession remains with the owner and only the right of inspection of those books of account or documents could be exercised by the authorities having the power. Power of search implies an exploratory examination or probing into or seeking out something which is hidden, sealed, suspected and not open, exposed or demonstrated. The power of survey is restricted only with the place where the business or profession is carried out. Sub-section (2) of section 133A empowers the income-tax authority to enter any place of business or profession. Explanation to sub-section (1) of section 133A also covers a place, whether a business or profession is carried on therein or not, in which the person car....
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....ssion from sub-section (2) to section 133A, of sub-section (3) to section 131 could have no other meaning. This is corroborated by the fact that even the power under sub-sections (1) and (2) to section 131 has been conferred upon the surveying officer only to enforce compliance of the requirements made, and for no other purpose. The power to impound books of account or documents mentioned in sub-section (3) to section 131 could have no possible relation or relevance for enforcing compliance with the requirements of either facilitating the inspection or placing of the identification marks or causing extracts to be made from the account books or documents. The action of the first respondent in impounding and taking away the books of account or other documents belonging to the petitioner-firm was without the authority of law. They must return them." The Punjab and Haryana High Court in Gheru Lal Bal Chand v. ITO [1982] 137 ITR 190, at page 194, observed thus : "It is clear that the Income-tax Officer is debarred from removing the books of account or other documents et cetera from the business premises of the assessee under sub-section (4) during the survey under section 133A. Th....
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....to impound any of the documents found in the course of survey. That sub-section incorporates within itself the provision of section 131(1) for the limited purpose of enforcing compliance with the requirement made by the authority with regard to the matters enumerated at (i), (ii) and (iii) of section 133A(1). It is for this limited purpose the powers conferred on the officers referred to in section 131(1), namely, the same powers, as are vested in a court under the Code of Civil Procedure while trying a suit in respect of (a) inspection and discovery, (b) enforcing the attendance of any person and examining him on oath, and (c) compelling the production of books of account and other documents, and (d) issuing of commissions, are also conferred on the income-tax authority while carrying out a survey, if the persons connected with the business or profession present at the time of survey, refuse or evade complying with the requisitions made in respect of the matters referred to in section 133A(1). The contents of section 131(1) are incorporated into section 133A(6) by reference. By such incorporation the other sub-sections of section 131 are not engrafted into section 133A(6). Parliam....
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....idity of search was considered and the safeguard under section 165 of the Criminal Procedure Code, was considered sufficient. The seizure of the documents could be only after search which is provided under section 132 and impounding is permissible in a case where inspection is carried on. That inspection may be by any survey or whenever books are produced under section 131 before the income-tax authority. The power of impounding under section 133A could not be exercised unless there is non-co-operation as stated above. The statement of objections filed by the respondent disputed the factual position and referred to a scuffle in respect of certain incriminating papers between the chairman of the petitioner company and the inspector. It is stated that the said papers were placed before him on the table for further inspection and there was no seizure and there was non-cooperation on the part of the petitioner. It is also stated that there were certain transactions which were not accounted for in the books of account and annexure-A is only a list of books of account and documents found during survey under section 133A. List of inventory was prepared at 3.15 p.m. and since the transa....