TMI Blog1984 (11) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... facts stated in the writ petitions. It was also claimed that certain other assets not belonging to the petitioner were also seized, but nothing much turns on that, as far as this petition is concerned. The search took place on May 14, 1981, and hence the books of account and other assets could be retained for 180 days under section 132 of the Act. After that, the period of retention could be extended with the approval of the Commissioner under the provisions of section 132(8) of the Act. According to the petitioner, they had been asking for the return of the seized assets because 180 days had passed, but the same were not returned. Eventually, an order dated October 5, 1983, was passed by the Commissioner of Income-tax, annexure I to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search and seizure took place on May 14, 1981, the extension of the time of 180 days had to take place before that period expired. In other words, it was claimed that the extension had to be granted before November 14, 1981. As a result of this rejoinder, yet another counter-affidavit was filed by the Income-tax Officer showing how the retention had been made for more than 180 days. It was also brought to the notice of the court at the hearing on September 26, 1984, that there were some orders passed under section 132(8). Those orders showed that the retention beyond 180 days was permitted up to June 30, 1982. But, there was no order available on the, file after June 30, 1982. The last order allowed extension up to September 30, 1984, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid and not with whether there are good grounds for retaining the books. The scheme for searches and seizures contained in section 132 visualises initially a search of certain premises with a view to seize books of account or other relevant documents or to take into possession money, bullion, jewellery, etc. The purpose of these searches is to locate either documents showing that the assessee has evaded tax, or to take into possession money, bullion, jewellery, etc., which appears to have been acquired from undisclosed income. In the present case, the search and seizure was conducted on May 14, 1981. The next relevant provision, as far as we are concerned, is section 132(8), which is as follows : " The books of account or other doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection and requesting for the return of the books of account or other documents." Sub-section (12) visualises a hearing by the Board which may pass any order it deems fit on such an application. The procedure, therefore, can be summarised as follows. The documents can be retained for 180 days unless an order is passed by the authorised officer which is approved by the Commissioner. This order can allow for detention of the seized books of account and other documents beyond 180 days. If this approval is objected to by the person concerned, he may apply to the Board, who after hearing can pass such orders as it deems fit either upholding the further retention or directing the return. If no order is passed, then the person concerned can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of retention would arise only if the period had already been extended up to October 5, 1983. There cannot be a gap of a single day because section 132(8) only allows extension of the time and not a fresh retention. This means that on a plain reading of the section, the retention is invalid. If the order had been a valid order in the sense of being merely an extension of period, the assessee could have moved the Board. But, in this case, there seems to be no valid order after June 30, 1982, and, therefore, the petitioner has rightly moved this court. Though several points have been argued before us, we think the present case is covered by the two reported cases cited before us, namely, Metal Fittings P. Ltd. v. Union of India [198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had to be returned long ago. So, the delay in filing the writ petition, if any, is not very relevant. Taking up the position now from October 5, 1983, when the order under section 131(3) was passed, we may say that this order can be read as an order under section 132(8), and the files which were shown to us, which we never showed to the assessee, seem to confirm the fact that the Income-tax Officer was wanting a further extension under section 132(8). Nevertheless, once the retention of the books beyond June 30, 1982, became invalid, it could not be, validated by a new order passed on October 5, 1983. Therefore, we have no hesitation in holding that the present retention of the books is totally invalid and the books have got to be returne ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
