TaxTMI 
TaxTMI 
1982 (5) TMI 24
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.... search warrant Was issued on July 27, 1981. Its premises were searched at both places. The books of account were seized. The Department took them away. This happened between August 6, 1981, and August 18, 1981. We will take August 18, 1981, as the date of seizure for computation of 180 days. Now, 180 days computed from August 18, 1981, expired on February 14, 1982. On February 26, 1982, the petitioner asked the Department to return the books as the period of 180 days prescribed in s. 132(8) of the Act had expired. The respondents refused to return the books. On this the petitioner filed the present petition on March 22, 1982, under art. 226. We now have it from the Department that on March 8, 1982, the ITO recorded the reasons for retai....
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....h Court in Seth Brothers v. CIT [1971] 80 ITR 693. The Allahabad High Court said (p. 698): " The sub-section does not require that the approval should be taken prior to the expiry of that period (i.e., 180 days). The language is sufficiently wide to enable the authorised officer to seek and obtain the approval of the Commissioner even after the expiry of 180 days. The approval of the Commissioner granted even after the expiry of that period would be sufficient to sanction and validate the further retention of the books beyond that period." This ruling certainly supports the contention of the Revenue. The petitioner, on the other hand, relies on a ruling of this court reported as Hanuman Pershad Ganeriwala v. Director of Inspection ....
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.... to compel a mandatory construction of a statute of this kind. We do not agree that even if the approval of the Commissioner is accorded after the expiry of 180 days, the retention of the books will be valid. We respectfully agree with the view expressed by the Division Bench of this court. We do not think that sub-s. (8) is widely worded, as is the view of the Allahabad High Court. In our judgment it is restrictive in nature. It restricts the right of the Department to retain books for an indefinite time. It is couched in negative terms and sets a deadline within which the approval of the Commissioner must be obtained. Where statutory restrictions are couched in negative terms they are almost invariably held to be mandatory. Negative wo....
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....ve history of the provision also shows this. This sub-s. (8) was introduced by the Amendment Act, 1965. It came into operation with effect from April 1, 1965. This is a brand new provision. It is intended for the protection of the assessee. Before its enactment there was no time-limit. Now, there is a time frame. If we are to paraphrase the legislative command in old biblical English we will say: " Thou shalt not cross the deadline. " After the introduction of the new sub-section, it is difficult to accede to the contention of the Revenue that it can retain the books beyond 180 days and obtain the approval of the Commissioner after the expiry of the specified time. Secondly, counsel said that the petitioner has an alternative remedy unde....