Rajendra Babu, J.:—

In this Petition the petitioner is calling in question the order made, by the respondent under Section 132(5) of the Income-tax Act 1961 (hereinafter referred to as the Act).

2. In the Petition it is stated that a warrant of authorisation dated 25-1-1991 was issued to conduct a search of the premises in the case of Shah Tarachand Shankarlal Enterprises, Hubli, a partnership firm. This warrant of authorisation is in respect of business premises of firms of Shah Tarachand Shankarlal (Cotton) and (M.L), T.S & Company, T.S Complex and T.S Enterprises NCM, Hubli. Another warrant has also been issued on the suspicion that the very same firms are suspected to have kept such books, documents, money, bullion, jewellery or other valuable articles or things in the common residence of some of the partners of the firms referred to above, near Hotel Woodlands, Keshavapur, Hubli.

3. This petition is filed in the individual capacity of the petitioner though he is also stated to be one of the partners of the firms in question. It is stated that no warrant of authorisation was issued in the name of the petitioner but the same was only in the names of different firms and therefore it did not authorise the Departmental officials to conduct a search or effect any seizure thereof. On the basis of the aforesaid authorisations a search took place from 29-1-1991 to 7-2-1991 of the residential premises of the petitioner which is also the residential premises of partners of different firms referred to above and certain unaccounted assets like share certificates, gold and silver articles were noticed. On 7-2-1991 it is stated that the petitioner made a statement on oath to the effect that he is not liable to explain as to how he came to acquire shares worth Rs. 15 lakhs, gold articles to the extent of 2970 Grams and 20 Kilograms of silver, which was stated to be in excess of the assets declared in the returns. All the above were inventorised but seizure of said articles of gold, silver and share certificates were not effected. It is stated that on the request of the petitioner the Authorised Officer did not seize them who agreed to give a sum of Rs. 25 lakhs voluntarily. Thereafter an order under Section 132(5) of the Act has been passed.

4. It is submitted on behalf of the petitioner that:

i) the Department could not have conducted search on the basis of the authorisation issued in the name of the firms, of the residential premises of the petitioner nor any article found therein could have been seized;

ii) the jewellery and other documents found were not seized but merely taken note of or inventorised and the petitioner was asked to withdraw a sum of Rs. 25 lakhs, which sum is said to have been seized;

iii) the records of assessment or other proceedings relating to the petitioner were pending before one authority and the same were transferred to another authority and the latter authority has passed the order in question under Section 132(5) of the Act without due notice to the petitioner;

iv) before passing the order under Section 132(5) of the Act notice under Rule 112 is not given to the petitioner but only to some of the firms in question and therefore the order as against the petitioner could not have been passed.

5. It is contended on behalf of the respondent that though the warrant of authorisation issued under Section 132 of the Act refers to the firms being in possession of money, bullion, jewellery or other valuable articles or documents, the same authorised not only search of the firms of which the petitioner is a partner but also the residential premises of the petitioner. It is also submitted that when the petitioner himself offered a sum of Rs. 25 lakhs to be seized in lieu of jewellery and silver articles and other documents, the question of the petitioner now contending that the same could not have been seized does not arise. It is also contended that for the purpose of proceedings under Section 132(5) of the Act the notice of transfer of proceedings need not be given to the petitioner and the petitioner was representing the firms throughout and therefore he had reasonable notice of the proceedings before the respondent and thus the proceedings are not invalid either on the ground of want of notice under Rule 112 of the Rules or on the basis that principles of natural justice have not been observed.

6. For the purpose of correctly understanding the nature of the contentions urged in this case, a peep into the relevant provisions of the Act is necessary. Search of premises of an assessee can be conducted under Section 132 of the Act and seizure also can be effected thereof on grounds referred to in Sections 132(1)(a) to (c) to the Act. In the circumstances, that on failure or omission of any person to produce books of account or other documents as required in a summon or the possibility of non-production by a person of any books of account or other documents which are useful or relevant to proceedings under the Act or possession by any person of any money, bullion, jewellery or other valuable article or thing representing either wholly or partly the income or property which has not been or would not be disclosed for the purpose of the Act, a search can be conducted by the Authorised Officer under a warrant of authorisation. Rule 112(2) prescribes certain forms and the manner in which such authorisation can be made. It is submitted in the present case that the most serious omission contained in the warrant of authorisation is the name of the person whose premises is sought to be searched. Where the warrant does not disclose the name of the person whose premises is sought to be searched, mere description of a premises thereof is not sufficient. It is contended that having regard to the scheme of the provisions of the Act since the authorisation can be against the owner or possessor of documents or other valuable articles referred to above, to whom the undisclosed income or property is attributed or the person in whose actual possession such property lies, in such cases the Act does not enable the department to conduct search or effect seizure thereof. In the present case, the authorisation is in respect of income or property which is not likely to be disclosed, belonged to firms of which the petitioner is a partner. For the purpose of the Act, the firm and its partners are different entities. Firm itself is a person for the purpose of the Act. When the legal title might have been with the person whose income or property is sought to be taxed and physical possession was with other person it is in respect of such person's premises a warrant should have been issued. In the present case, legal title is not traced to the firms nor possession is that of the firms, but it is purely that of the petitioner. When search was to be effected in the residential premises of the petitioner, warrant of authorisation should have enabled the search in the residential premises of the petitioner. But, on the other hand, the warrant of authorisation is only that petitioner's firms have not produced the books of accounts or other documents which will be useful or relevant to proceedings under the Act and or riot likely to be produced or is in possession of money, bullion, jewellery or other valuable articles or things. Therefore, there is no reference at all in the warrant of authorisation that such documents or money, bullion, jewellery or other valuable article or thing is in possession of the petitioner in his individual capacity. As a necessary consequence the mere mention of residential premises does not enable the Department to effect seizure either of gold, jewellery or other articles or documents and hence it must be held that petitioner's contention that the warrant of authorisation does not enable the Department to effect search or seizure of the property belonging to him on the basis of a warrant issued in the name of firm, no warrant in the name of the petitioner at all having been issued, is valid and tenable. This ground itself is sufficient to quash the order impugned in this petition. But since one more substantial ground affecting the jurisdiction of the officer to make an order under Section 132(5) of the Act is raised, I propose to consider the same.

7. From the narration of facts made above and from the pleadings and other documents produced in the case, it is clear that jewellery, silver articles and documents which were found were not seized. But the petitioner, according to him, was asked to withdraw Rs. 25 lakhs while it is the case of the respondent that such sum was offered voluntarily by the petitioner. Whatever may be the position, it is clear that the seizure of jewellery, silver articles and other documents was not effected. But what was taken into possession was only the cash of Rs. 25 lakhs offered voluntarily. Therefore, on the facts of this case it must be held that there is no seizure effected at all. In this context it is necessary to refer to a Decision of the Supreme Court in Commissioner of Income Tax v. Tarsen Kumar . 1986 161 ITR 505.. Explaining the concept of seizure it is stated in that Decision that where location of the property is known to the authority concerned it cannot be said that there could be any search to seize those documents or other valuable property. Seizure implies forcible taking over from the owner or who has possession and who is unwilling to part with the possession and the Supreme Court with approval refers to the Decision in Ramesh Chander v. Commissioner of Income Tax . 1974 93 ITR 244. as well as two other Decisions in Motilal v. Preventive Intelligence Officer . 1971 80 ITR 418. and in Laxmipat Choraria v. K.K Ganguli & Others.* . 1971 82 ITR 306. though in a different context. But the concept of seizure as explained by the Supreme Court is forcible taking over from the owner or who has the possession and who was unwilling to part with the possession. Admittedly in the present case Rs. 25 lakhs was voluntarily offered by the petitioner. When that is so there is no seizure effected at all and consequently there could not be an order under Section 132(5) of the Act for an order under Section 132(5) could be passed only where bullion, jewellery or other valuable article or thing is seized by the authorised officer. If there is no seizure valid in law the question of passing an order under Section 132(5) of the Act does not arise at all.

8. In the present case, as stated earlier, the seizure is invalid for want of necessary authorisation and in the second place there is no seizure of money as the same has been offered voluntarily and therefore passing of an order under Section 132(5) of the Act does not arise as it is only in respect of money, bullion, jewellery or other valuable article or thing seized under the provisions referred to therein an order could be made under Section 132(5) of the Act and therefore the impugned order shall stand quashed. Sri K. Srinivasan, learned Senior Advocate, for the petitioner submitted that in this case he is not seeking for the return of the money voluntarily offered and it is open to the Department to consider adjustment of the said money against any assessment to be made for any tax due or for refund thereof, as the case may be, and hence I do not propose to consider that aspect of the case.

In view of the success of the petitioner on two substantial grounds, it is unnecessary for me to consider the other grounds which only relate to procedural infirmities.

8. Consequently, this petition stands allowed and order at Annexure-B shall stand quashed. Rule made absolute accordingly.