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2024 (5) TMI 599 - GAUHATI HIGH COURTLegality of search and seizure conducted at the residential premises of the petitioner - legality and validity of the notice issued u/s 131 (1A) - petioner submitted that since search has already been conducted, no notice u/s 132 (1A) issued to the petitioner - mandation to state 'Reason to suspect' that any income has been concealed or likely to be concealed - HELD THAT:- A bare perusal of sub-section (1A) of Section 131 of the Act mandates that notice u/s 131 (1A) is issued before the authority, takes action under clauses (i) to (v) of Section 132 (1) of the Act. Pertinent that the designation of officers for exercise of powers are different as mentioned in Section 131 as compared to Section 131 (1A) of the Act. The designation as mentioned in Section 131 are of the Officers of Assessment Wing who makes assessment and those mentioned in Section 131 (1A) are of the Investigation Wing who carries out search & survey and as such both the sections operates in different fields. Thus before making of a search, a notice under Section 131 (1A) of the Act has to be issued and since the taxing provisions of the statutes are to be interpreted strictly, the issuance of the notice under Section 131 (1A) of the Act in the instant case after conducting of the search is absolutely illegal & without jurisdiction. Taxing Statutes are to be interpreted strictly - It is trite law that a taxing statute is to be construed strictly. In a taxing Act one has to look merely at what is said in the relevant provision. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. There is no room for any intendment - See Ajmera Housing Corporation & Anr. 2010 (8) TMI 35 - SUPREME COURT] Ambiguity in the taxing provision - The words of a taxing statute must never be stretched against a tax-payer and if the legislature has failed to clarify its meaning by use of appropriate language, the benefit must go to the tax-payer. The Apex Court held that even if there is any doubt as to interpretation, it must be resolved in favor of the subject - See M/s Murarilal Mahabir Prasad [1975 (9) TMI 155 - SUPREME COURT] The taxing provisions has to be interpreted strictly, and on the strict interpretation of Section 131 (1A) of the Act, it is clear that before making of the search, a notice under Section 131 (1A) is mandatorily required to be issued. When the legislature in clear words under Section 131 (1A) of the Act has provided that notice has to be issued under Section 131 (1A) prior to making of the search, notice under Section 131 (1A) cannot be issued after conducting of the search and thereby, the notice issued under Section 131 (1A) of the Act is illegal and without jurisdiction contrary to the provision of the Section 131 (1A) of the Act. In the facts of the instant case, there could not have been any material that could be a reason to suspect that any income has been concealed or likely to be concealed by the petitioner. Section 131 (1A) of the Act consist of two conditions which are required to be fulfilled before any action is taken under Section 131 (1A). Both the conditions has to co-exist before any action of search and seizure is undertaken. These conditions are; a) Assessing Officer has reasons to suspect any income that is concealed or likely to be concealed and, (b)Upon existence of such reasons, issues notice for the purpose of making enquiry or investigation relating thereto. After fulfillment of the aforesaid two conditions, the Assessing Officer is empowered to take action under clauses i to v of sub-section 1 of Section 132. It is only after fulfilment of the aforesaid two conditions the Assessing Officer can conduct a search and seizure. In the present case, the respondent has not placed any materials whatsoever to indicate that Assessing Authority had any materials on the basis of which he has reasons to suspect that the petitioner has concealed or is likely to conceal any income. The affidavit filed on behalf of the authority is absolutely silent in this regard. The very fact that the respondent issued notices under Section 131 (1A) of the Act after the search and seizure operation under Section 132 of the Act was conducted, goes to show that there was neither any reasons to suspect nor materials before the Authorizing Officer on the basis of which search operation could have been conducted under Section 132 of the Act. Thus, the two essential conditions being absent before the impugned search under Section 132 was conducted, the same is without jurisdiction. Thus the subject search is absolutely illegal inasmuch as it is contrary to the express provisions of Section 131 (1A) of the Act. WP allowed.
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