V.K Jain v. Union Of India And Others.

S. Rangarajan, J.:— This judgment will dispose of Civil Writ Petitions Nos. 744 and 745 of 1971 also. Briefly stated the facts are that on April 24, 1971, at about 8.45 a.m three raiding parties, consisting of income-tax officials, conducted a raid on the residential-cum-office premises of the petitioner (No. 5P/37-C, Faridabad, NIT) and two other places at Faridabad later in the day. It is needless to set out all the facts pertaining to the said raid and searches.

2. Not all the contentions put forward concerning them in this and the connected writ petitions are available to the petitioner in view of the recent decision of the Supreme Court in Poor an Mal v. Director of Inspection (Investigation) [1974] 93 ITR 505, 520 SC.. In that case section 132 of the Income-tax Act, 1961 (hereinafter called “the Act”), and rule 112 of the Income-tax Rules, 1962 (hereinafter called “the Rules”), under which these raids, etc., were made, were attacked as being unconstitutional. The Supreme Court repelled the said attack on the ground that section 132 of the Act as well as rule 112 of the Rules have provided adequate safeguards against abuse and were hence valid. The power to order search and seizure was vested in the highest officers of the department; the exercise of the power can only follow a reasonable belief entertained by such officer that any of the three conditions mentioned in section 132(1)(a), (b) and (c) existed; the Director of Inspetion or the Commissioner, as the case may be, has to record his reasons before the authorisation is issued to the officers mentioned in sub-section (1) who could not be officers below the rank of an Income-tax Officer; the authorisation has to be for specific purposes enumerated in (i) to (v) in sub section (1), all of which are strictly limited to the object of the search. The person in charge of the premises searched is immediately given a copy of the list of articles seized, and a copy of the same is to be forwarded to the authorising officer. The same procedure which applies to searches and seizures under the Code of Criminal Procedure applies basically to these searches and seizures also. In these circumstances the Supreme Court held that the safeguards are adequate to render the provisions of search and seizure as less onerous and restrictive as possible; the argument that section 132 of the Act and rule 112 of the Rules were violative of articles 19(1)(f) and (g) of the Constitution were repelled.

3. In view of this decision Shri D.D Verma, learned counsel for the petitioners, only pressed two contentions alone which, according to him, survived even after the above decision of the Supreme Court.

4. Firstly, he contended that as a matter of construing clauses (a) and (b) of section 132(1) of the Act the officials of the income-tax department should have given to the petitioner a notice to produce whatever account books or other documents are needed and only after the petitioner fails to comply with the same there should have been a raid for the purpose of seizing them. To appreciate this contention, clauses (a) and (b) of section 132(1) of the Act may be read:

“132. (1) Where the Director of Inspection or the Commissioner, 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, 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, or under this Act.”

5. I am afraid this contention is not open to the petitioner in the light of what the Supreme Court has decided. It is seen from paragraph 14 of the report that one of the contentions was that it will be impossible for any authority to entertain a reasonable belief that if a requisition is made to the person concerned he would not cause the required documents to be produced.

6. The very contention, which is now urged by Shri Verma, was thus put forward in that case also as would appear from the following observation of Palekar J. on page 520:

“In his submission, the authority can entertain that belief only when a requisition is made and within reasonable time given the document is not produced.”

7. The present contention of Shri Verma is not, therefore, one which survives to him. Rejecting the above-said argument, Palekar J. referred to an illustration of an assessee filing his returns from year to year regularly over a period of years, his account books and other documents also being checked from year to year but it transpiring that this apparent honest assessee had invested large funds in properties and other financial bills according to information which later on found its way to the Director of Inspection. In such a situation it would be obvious that if notice to produce documents is given to the assessee he will most certainly not produce or cause them to be produced; on the other hand, there may be danger that they may be destroyed or separated, if he has notice or even an apprehension that such a step is contemplated against him.

8. In the present case, the Commissioner of Income-tax, Shri R.L Malhotra, who ordered the search and seizure, has filed an affidavit stating that he had information that the petitioner was maintaining duplicate set of account books—one meant to be produced before the income-tax authorities and the other intentionally to be withheld from such production. The information thus in his possession was relevant to the formation of necessary belief compelling him to issue a warrant authorising search of the premises and seizure of the books, documents and other documents and materials in accordance with the provisions of section 132 of the Act and the Rules made thereunder. He has also recorded his reasons (at the request of the petitioner's learned counsel, Shri B.N Kirpal, handed over the file containing reasons recorded by the Director of Inspection for my perusal during the hearing). A warrant was also prepared and issued by him authorising the Income-tax Officer in question to conduct the search and seize the account books and other documents. (This warrant was also produced for my perusal by Shri B.N Kirpal on a similar request). In view of the aforesaid decision of the Supreme Court, which upheld the validity of section 132 of the Act and of rule 112 framed thereunder, the petitioners cannot sustain their attack on the validity of the searches and seizures impugned in these connected writ petitions.

9. Secondly, Shri D.D Verma contended that the orders of search and seizure are mala fide. The allegation in the petition in this regard is that the search and seizure were made maliciously and for collateral purposes. The reasons in support of the said allegations are stated in paragraph 26 of the petition. None of the grounds mentioned therein, even on the face of them, establish any mala fides on the part of the officials ordering the searches and seizure or conducting the search and effecting the seizures. There is no substance at all in the grievance that a copy of the warrant of authorisation was not supplied to the petitioner. In the light of this expressed grievance the Income-tax Officer has sworn that the warrant of authorisation was shown to one Ashok Kumar, works-foreman, before the search started, that it was shown to the petitioner also on arrival at the factory and that signatures were also obtained on the authorisation warrant. This allegation was not controverted at all much less by filing any affidavit to the contrary from Shri Ashok Kumar. The Income-tax Officer has specifically denied that the petitioner demanded a copy of the authorisation warrant at the time of the raid; the rules also do not provide for a copy of the same being given. Only along with the rejoinder an affidavit of one Kulbushan Kumar was filed saying that he was taken from his shop by the Assistant Deputy Director of Inspection at about 10 a.m to the residence of the petitioner and that he was asked to sit in the office and was not informed of the nature of the job in connection with which he was brought. At the end of the day signatures of himself and that of Shri Balbir Singh were taken on certain papers. With reference to this affidavit it must be noticed that not even an allegation to this effect was made in the original petition. As such there cannot be an averment to this effect and much less an affidavit filed in support of such an averment made for the first time in the rejoinder alone which the other side had no opportunity ever to meet. This averment has thus to be ignored as an after-thought. The manner in which the search was conducted has been set out in detail in the affidavits of the Income-tax Officers and there appears to be no reason for distrusting what has been stated therein. There is no substance again in the complaint that no marks of identification were placed on any books of accounts or other documents seized. Such a kind of irregularity as referred to is not sufficient to invalidate the search in view of the above-said decision of the Supreme Court. No attempt ever was made before me to specifically refer to any of the grounds mentioned in para. 26 of the petition in support of the attack of mala fides except the allegation made in the petition pertaining to a former employee (H.S.D Gupta) of the petitioner having been dismissed on March 23, 1971, and his having filed complaints to the income tax department as well as to the further threats held out saying that he was known to many Income-tax Officers and that he was related to a few of them, with whose help he could ruin the petitioner's business. All this has no bearing on the allegation of mala fides on the part of the income-tax officials because the income-tax officials could gather information from any source including one inimical to the assessee. For this reason the search and seizure could not be held to be invalid when the necessary preconditions in respect of them have been satisfied and the statutory provisions in this regard have been duly complied with.

10. No other question was argued before me. I find no merit in this writ petition which is accordingly dismissed with costs.

11. As a result of the dismissal of this writ petition (and the connected petitions), the stay which was granted by Rajinder Sachar J., on November 23, 1971, and the further order of stay made by V.S Deshpande J. on January 24, 1973, are vacated for action to be taken according to law by the department on the basis of the seizures which were impugned in this writ petition. Rajinder Sachar J., having restrained the passing of final order pending the writ petition, the revenue can proceed to pass final order in accordance with law.

12. Shri M.K Garg, learned counsel for the petitioner, states that some other clarifications, regarding which he says he is not aware, might have been passed in the writ petition during the pendency of the writ petition. He is only anxious that such clarification, if any, should not be nullified by any observation of mine made in this respect; it is not so intended.

13. Petition dismissed.