TMI Blog2011 (5) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... stantiate that money in question was withdrawn from any known sources. Madhav Bhai Patel from whose possession the money was seized in his statement under section 131 did not state that the money in question belonged to petitioner's firm or it was handed over to him on behalf of the said firm & it is nowhere said in his statement that the money in question was to be delivered to the petitioner's firm. On the contrary, he has clearly stated that the person to whom the money was to be delivered, was to be disclosed on telephone, after he reaches Ahmedabad office of the firm. Thus, the explanation furnished by Madhav Bhai Patel was not found satisfactory by the department and the aforesaid material was in possession of the authority when on 11-6-2007 the warrant of authorization was issued - Writ petition is dismissed - Writ petition is dismissed - WRIT PETITION NO. 3625 OF 2007 - - - Dated:- 5-5-2011 - SHANTANU KEMKAR AND ABHAY M. NAIK, JJ. P.M. Choudhary for the Petitioner. R.L. Jain and Ms. Veena Mandlik for the Respondent. ORDER Abhay M. Naik, J. This writ petition under Article 226 of the Constitution of India has been preferred against the warrant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction over the petitioner is ITO Ward 3(3), Ahmedabad under administrative control of Additional Commissioner of Income-tax, Range-3, Ahmedabad and Commissioner of Income-tax, Ahmedabad-1, Ahmedabad. It is further stated that the Main Office of the petitioner-firm is at Ahmedabad with its branch at Indore having its Office at F-3, Puranik Plaza, 1st Floor, Near Prashant Hotel, 15/1, Jail Road, Indore. Petitioner firm's branch at Indore required an amount of Rs. 36,00,000, which was arranged and sent to Indore by Head Office. Later on, the said amount of Rs. 36,00,000 was handed over to be transferred to its Head Office, which was being carried by petitioner No. 2, who was an employee of the petitioner's firm. He was intercepted on 10-6-2007, when he was carrying the money from Indore to Ahmedabad in a bus, by Chandan Nagar Police and the amount in question was seized from him. The factum of seizure was intimated by the Police Authorities to Income-tax Department. Consequently, respondent No. 1 issued a warrant of authorization on 11-6-2007 in exercise of its powers under section 132A(1) of the Income-tax Act and has proposed to requisition the said amount of Rs. 36,00,000 seized fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Act, 1922 (11 of 1922), or under this Act and any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, such books of account or other documents on the return of such books of account or other documents by any officer or authority by whom or which such books of account or other documents have been taken into custody under any other law for the time being in force, or (c) any assets represent either wholly or partly income or property which has not been, or would not have been, disclosed for the purposes of the Indian Income-tax Act, 1922 (11 of 1922), or this Act by any person from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force, then, the [Director General or Director] or the [Chief Commissioner or Commissioner] may authorise any [Additional Director, Additional Commissioner,] [Joint Director], [Joint Commissioner], [Assistant Director [or Deputy Director]], [Assistant Commissioner [or Deputy Commissioner] or Income-tax Officer] (hereafter in this section and in sub-section (2) of section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 132A of the IT Act has been clarified in the following passage:- "10. At this state we deem it appropriate to deal with the scope and ambit of powers under section 132A of the Income-tax Act with regard to search and seizure. In Seth Brothers (supra), the Supreme Court while dealing with the provisions of section 132 of the Income-tax Act relating to search and seizure which is pari materia to section 132A of the Income-tax Act has held that section does not confer any arbitrary power on revenue officers. It was further observed that if the action of the officer issuing the authorization or of the designated officer is challenged, the officer concerned must satisfy the court about the regularity of the action. If it is found that action has been taken maliciously or power is exercised for collateral purpose, the same is liable to be struck down by the Court. It has been further held that power exercised by the Commissioner under section 132 is not a judicial or quasi judicial power and that the Court cannot substitute its own opinion for that of the Commissioner." 9. The Apex Court in the case of Union of India v. Ajit Jain [2003] 260 ITR 80/129 Taxman 74 has held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, is sufficient. Sufficiency of the information is not to be gone into by this Court, which is not empowered to substitute its opinion. Sufficiency of reasons for belief cannot be equally questioned before this Court. 13. Single Bench of this Court in the case of Krishnagopal v. Director of Income-tax (Investigation) [2009] 182 Taxman 303 (MP) has observed:- "6. A statutory functionary must act in a manner laid down in a statute. A bare reading of section 132A(1) makes it clear that the power conferred on the authority is conditional and the conditions precedent for authorizing action are possession of information by the authority and in consequence of which the authority must have reason to believe that the person concerned has assets which have not been or would not have been disclosed for the purpose of the Act." 14. Shri P.M. Choudhary appearing for the petitioner placed much reliance on the decision of the Apex Court in the case of CIT v. Vindhya Metal Corpn. [1997] 91 Taxman 192, wherein it has been held that if the amount is seized by the GRP from the possession of a traveller, who at that time, had no documents as to the ownership or possession of sum and whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Head Office at Ahmedabad, which is contrary to the statement of Madhav Bhai Patel recorded under section 131 of the IT Act. Though it is mentioned in the same paragraph that the amount in question was arranged and sent to Indore by Head Office by effecting withdrawals from the firms bank account, no particulars of the bank account are described in the writ petition, Similarly, statement of account of the petitioner firm's bank account is also not annexed to the writ petition to substantiate that money in question was withdrawn from any known sources. It is further pertinent to note that Madhav Bhai Patel in his statement under section 131 of the IT Act did not state that the money in question belonged to petitioner's firm or it was handed over to him on behalf of the said firm. Similarly, it is nowhere said in his statement that the money in question was to be delivered to the petitioner's firm. On the contrary, he has clearly stated that the person to whom the money was to be delivered, was to be disclosed on telephone, after he reaches Ahmedabad office of the firm. Thus, the explanation furnished by Madhav Bhai Patel from whose possession the money was seized was not found sat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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