TaxTMI 
TaxTMI 
2009 (1) TMI 88
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.... Anil Kumar, Mr S. Bose, Mr K. C. Badhang, Mr P. K. Mishra (DCIT) and Mr Rajiv Kumar]. This warrant of authorization was issued on 25.05.2000 and was in respect of the premises at B-256, Suraj Mal Vihar, Delhi-92. A panchnama was drawn upon on 25.05.2000 itself and a restraint order under Section 132 (3) of the said Act in respect of locker No. 11-PNB, Preet Vihar, Delhi under the names of Sh. P. K. Garg and Smt. Shashi Garg was also served on Mr P. K. Garg. 3. Thereafter, a second warrant of authorization in Form 45 under Section 132 of the said Act read with Rule 112 (2)(a) of the said rules was issued on 25.05.2000 by Mr A. K. Singh, Additional Director of Income Tax (Investigation) authorizing some Deputy Directors of Income Tax, Assistant Directors of Income Tax and Income Tax Officers to conduct a search in respect of the said locker No. 11 standing in the names of Mr P. K. Garg and Smt. Shashi Garg in Punjab National Bank, Preet Vihar, Delhi. The panchnama drawn on 26.05.2000 indicated that the search in respect of the said locker commenced on 26.05.2000 at 12.05 p.m and the same was closed on 26.05.2000 at 1.15 p.m temporarily, to be commenced subsequently and for which ....
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....D) of the said Act. Even assuming that the expression Joint Director as used in Section 132(1) includes an Additional Director, such Additional Director or Joint Director would have to have initial empowerment by the Board to issue warrants of authorization in view of the provisions of Section 132(1)(B). This, of course, is de hors the argument that the definition given in Section 2(28D) has to be read in the light of the opening words of Section 2 which clearly stipulates that the definitions given in that provision are subject to the expression unless the context otherwise requires. 7. The learned counsel for the revenue also contended that there was authority granted to the Additional Director of Income-tax by the Board to issue warrants of authorisation of search and seizure operations under Section 132(1) of the said Act. A reference was made, first of all, to a notification dated 06.11.1979 issued by the Board in exercise of powers conferred under Section 132(1) of the said Act. By virtue of the notification, the Board empowered the following Deputy Directors of Inspection and Inspecting Assistant Commissioners to authorize action under Section 132(1) of the said Act:- ....
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....the persons belonging to the original category, i.e., of Director of Inspection or Commissioner of Income-tax were empowered by the statute itself to authorise any action under Section 132 of the said Act, the persons falling in the second category, i.e., Deputy Directors of Inspection and Inspecting Assistant Commissioners had to be specifically empowered by the Board to issue warrants of authorisation of search and seizure operations under Section 132 of the said Act. After the 1975 amendment, even Deputy Directors of Inspection and Inspecting Assistant Commissioners could initiate action under Section 132 provided they were specifically empowered to do so by the Board. It is pursuant to this amendment in 1975 that the Board issued the notification dated 06.11.1979 empowering specific Deputy Directors of Inspection and Inspecting Assistant Commissioners to take action under Section 132 of the said Act. This position continued till 1988 when, by virtue of an amendment, the first category of persons comprised of (1) the Director General; (2) Director; (3) Chief Commissioner and (4) Commissioner. These persons, without requiring any further authorisation from the Board, could issue ....
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....-tax and Joint Commissioner of Income-tax in the pay scale of Rs 12,000-375-16,500/-. The learned counsel for the revenue contended that the empowerment as per notification dated 11.10.1990, would automatically apply, in view of the above re-designation, to Joint Directors of Income-tax as also Joint Commissioners of Income-tax. This argument does not advance the case of the revenue. First of all, the officer who issued the warrant of authorisation on 25.05.2000 was not a Joint Director of Income-tax, but was the Additional Director of Income-tax (Investigation). Secondly, the notification that was necessary in the present case, was a notification by the Board in exercise of powers under Section 132(1) of the said Act. There is no such notification authorizing any Joint Director or Joint Commissioner. The notification dated 23.10.1998 on which the revenue seeks to place reliance is one which has been issued not by the Board, but by the Central Government and that too in exercise of powers under Section 117 (1) of the Act. There is no specific empowerment in favour of any Joint Director or Joint Commissioner under Section 132(1) of the said Act. Mere re-designation of a class of off....
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....rector (Investigation) had the requisite jurisdiction to authorize any officer to effect search and seizure in purported exercise of the power conferred upon him under Section 132 of the said Act. The Division Bench concluded that the Additional Commissioner (Investigation) did not have the power to issue any authorisation or warrant to the Joint Director, New Delhi. While doing so, the Division Bench considered, inter alia, the provisions of Section 2(21) which defined Director General and Director; Section 2(28D) which defined Joint Director and Section 132(1) of the said Act. The definition of Director General or Director given in Section 2(21) after the amendment of 01.10.1998 indicated that the Director General or Director meant a person appointed to be a Director General of Income-tax or, as the case may be, a Director of Income-tax, under sub-section (1) of Section 117, and included a person appointed under that sub-section to be an Additional Director of Income-tax or a Joint Director of Income-tax or an Assistant Director or Deputy Director of Income-tax. An argument was advanced on behalf of the revenue that since the definition of Director includes an Additional Director....
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....ion to issue a warrant of authorisation and consequently, the same was liable to be quashed. 16. We may also note that in CIT v. Jainson: ITA 366/2007 decided on 17.07.2008, we had endorsed and respectfully followed the view taken by this court in Dr Nalini Mahajan (supra). The main question sought to be raised in CIT v. Jainson (supra) was with regard to the power of the Additional Director of Income-tax (Investigation) to issue a warrant under Section 132(1) of the said Act. The tribunal in that case had found that the warrant of authorisation by the Additional Director of Income-tax (Investigation) was without authority and, therefore, the entire search as well as the assessment proceedings subsequent upon such warrant were invalid and bad in law. The tribunal had, like in the present case, followed the decision of this court in Dr Nalini Mahajan (supra). We had noted that in Dr Nalini Mahajan (supra) this court had arrived at a conclusion that the Additional Director or Income-tax (Investigation) did not have any power to issue any authorisation or warrant under Section 132(1) of the said Act. We found that the issue sought to be raised by the revenue was entirely covered by....
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....al Director of Income-tax, it meant that it was issued by a Joint Director of Income-tax and, therefore, the warrant of authorisation was valid. This argument cannot be accepted. As held in Dr Nalini Mahajan (supra), the definition of Joint Director has to be read contextually. The provisions of Section 132(1) refers to Director General or Director as well as Joint Director or Joint Commissioner. While the first two authorities fall within the first category, which were empowered by the statute itself to authorize action under Section 132(1), the latter two authorities, namely, the Joint Director or Joint Commissioner, can only authorize action if they are specifically empowered by the Board in that behalf. Now, the definition of Director General or Director as given in Section 2 (21), includes Additional Director of Income-tax as well as a Joint Director of Income-tax. If the argument of the learned counsel for the revenue were to be accepted that the expression joint Director as used in Section 132(1) would include an Additional Director of Income-tax, then there would have been no occasion for the legislature to have separately specified Joint Director under Section 132(1) when ....