M. L. Dujari vs Union Of India & Ors.
1992 Latest Caselaw 468 Del

ORDER UNDER S. 132(5)--Reasonable opportunity of being heard.--The point raised was that the respondents have not complied with the provisions of sub-s. (5) and sub-s. (9) of s.

132 inasmuch as reasonable opportunity was not given and the copies of the books of accounts which were seized were not supplied to the petitioner before making a summary assessment.

HELD :

It is found that at the time of seizure, a punchnama was prepared by which Rs. 95,000 in cash and numerous shares worth Rs. 40 lakhs were recovered and complete details of shares were mentioned in punchnama, copy whereof was given to the petitioner. The petitioner was given opportunity to explain and he made statements and furnished explanation which runs into numerous pages.

APPLICATION :

Kishinchand Chellaram v. CIT (1980) 125 ITR 713 (SC) distinguished.

APPLICATION :

Also to current assessment years.

Income Tax Act 1961 s.132(5)

Income Tax Act 1961 s.132(9)

Search and seizure--RETENTION OF BOOKS, ETC. BEYOND 180 DAYS--Authorised by CIT only up to 30-6-1991--Retention order passed beyond 30-6-1991 not brought on record--Books ordered to be released in case no order has been passed by the CIT for retention of books beyond 30-6-1991.

APPLICATION :

Also to current assessment years.

JUDGMENT

GOKAL CHAND MITAL, C.J. :

Rule D.B.

The main point raised before us was that the respondents have not complied with the provisions of sub-s. (5) and sub-s. (9) of s. 132 of the IT Act, 1961 inasmuch as reasonable opportunity of hearing was not given and the copies of the books of accounts which were seized were not supplied to the petitioner before making a summary assessment.

2. On a consideration of the matter, we find that at the time of seizure, a punchnama was prepared by which Rs. 95,000 in cash and numerous shares worth Rs. 40 lakhs were recovered and complete details of shares were mentioned in punchnama, copy whereof was given to the petitioner. The petitioner was given opportunity to explain and he made statements and furnished explanation which runs into numerous pages starting from page 278 to page 362 of the paper book before us.

3. Another contention raised by the learned counsel for the petitioner is that the petitioner was not supplied copies of the documents seized from various companies who were operating from the same premises.

4. We do not find any substance in this contention inasmuch as proceedings under s. 132(5) of the IT Act are summary proceedings and the petitioner was (sic-not) entitled to have copies of the records seized from these companies.

5. The learned counsel placed reliance on a judgment of the Supreme Court in Kishinchand Chellaram vs. CIT (1980) 125 ITR 713 (SC) in support of the aforesaid contention. We, however, find that the ratio of this judgment is not applicable to the facts of the present case. As stated above, in the present case we are concerned with the proceedings under s. 132(5) of the IT Act (in short the Act) but in the case of Kishinchand Chellaram (supra) the Court was concerned regarding denial of opportunity to the assessed in the reassessment proceedings.

6. It will also be pertinent to point out here that the order s. 132(5) of the Act was passed on 12th June, 1990 and the petitioner filed an appeal against the said order before the CIT, Jaipur who vide his order dt. 25th November, 1991 rejected for the appeal of the petitioner. Meanwhile, the regular assessment proceedings for the assessment year in question have already commenced and it has been stated in the reply-affidavit filed on behalf of respondent No. 5 that during the regular assessment proceedings the petitioner ahs been provided all the opportunities of inspection and to take xerox copies of the seized material.

7. In view of these facts we are not inclined to interfere with the impugned order.

8. The last contention raised by the learned counsel for the petitioner is that under s. 132(8) of the Act the seized books of accounts and other documents cannot be retained by the authorised officer for a period exceeding 180 days from the date of seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner or such retention is obtained. He submitted that in the present case the retention of the seized records was authorised by the Commissioner only up to 30th June, 1991, as intimated to the petitioner vide letter dt. 12th September, 1990 and as such the continued retention of the seized documents beyond 30th June, 1991 was in violation of the aforesaid provisions of the Act. In support of his contention he placed reliance on the Division Bench judgment of this Court in Survir Enterprises vs. CIT & Ors. (1986) 157 ITR 206 (Del). The learned counsel for the respondent could not produce any order passed by the CIT for retention of the books of accounts beyond 30th June, 1991. He, however, submitted that the original file was not available with him today but such an order must have been passed by the Commissioner.

9. In view of these facts, we direct that in case no order has been passed by the CIT for retention of books beyond 30th June, 1991, the books of accounts shall be released to the petitioner forthwith and in case such an order has been passed by the CIT, a copy of the same shall be supplied to the petitioner within two weeks from today.

10. With these observations, the writ petition stands disposed of.