TMI Blog2010 (5) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... eld to be, on the facts and circumstances, without jurisdiction or in contra-vention of any provision of the Act or the Rules so as to occasion this court to interfere in the matter - Decided in favour of the assessee - 284 of 2004 - - - Dated:- 21-5-2010 - RAJES KUMAR, PANKAJ MITHAL, JJ. JUDGMENT 1. The petitioners to the writ petition have prayed for issuance of a writ of certiorari quashing three notices dated December 16, 2003 (annexures 11, 12 and 13 to the writ petition) issued separately to all three of them by the Assistant Commissioner, Central Circle, Agra, under section 158BC of the Income-tax Act, 1961, requiring them to submit returns of their total income including undisclosed income for the block period April 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Commissioner of Income-tax was not conferred with the power to issue authorisation for search and seizure but the said provision was amended by the Finance (No. 2) Act of 2009 and in addition to the officers mentioned in section 132, the Additional Director or the Additional Commissioner of Income-tax was also added and conferred with the power to issue and sign the authorisation with retrospective effect from June 1, 1994. By virtue of the above amendment the Additional Director or the Additional Commissioner of Income-tax also became competent to issue and sign the authorisation for search and seizure, thus validating the authorisation of search and seizure of April 24, 2003, issued under the signature of the Additional Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Director or the Additional Commissioner of Income-tax either in the aforesaid rule or in Form 45 does not mean that he does not have the authority to issue and sign the warrant of authorisation for search and seizure under section 132(1) of the Act for the simple reason that the Act itself in specific terms now authorises and confers the power of issuing and signing the warrant of authorisation for search and seizure upon him. The rule or the Form cannot run contrary to the basic statute and thus would not override the specific provisions of the Act which admittedly stand amended retrospectively with effect from June 1, 1994. Admittedly, the authorisation for search and seizure in the present case is in the prescribed form having the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the search and seizure operation stand vitiated as no two witnesses of the locality were summoned by the search party. 12. In the counter-affidavit filed on behalf of the Department it has been submitted that Sri Sanjay Bhandari and Dr. Sudarshan Singhal were summoned as witnesses on the request of the petitioners themselves. There-fore, the petitioners cannot now take a stand that the search and seizure was invalid as the witnesses were not of the locality. The petitioners have nowhere averred that any protest at any time either during the search or thereafter was lodged by them in this regard alleging that the search and seizure operations were illegally conducted in the absence of witnesses from the locality. The petitioners ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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