TMI Blog2002 (2) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... brief, is that on the October 20, 2000, the respondent No. 2 along with some other officers seized the documents as per seizure receipt handed over to one Shri O.P. Sharma and those documents still are lying in possession of the respondents though under law such retention of the documents is not warranted. Under section 66(1)(b) of the Act, 1994, documents are to be retained after seizure for a period of one year and in this case such period expired on October 19, 2001. The seized documents can only be retained provided reasons are recorded in writing and sanction thereby is obtained from the Commissioner. 3.. On October 22, 2001, the petitioner was served with a notice asking him to show cause by respondent No. 2 as to why the seized rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lawyer for the petitioner should, therefore, be released after quashing or setting aside the impugned order dated October 12, 2001, passed by respondent No. 2. In support of his contention the learned lawyer for the petitioner relied on the decisions reported in [1995] 28 STA 211 (Sanjib Bothra v. Additional Commissioner, Commercial Taxes), [1984] 145 ITR 477 (SC) (Commissioner of Income-tax, West Bengal III v. Oriental Rubber Works), [1992] 87 STC 465 (WBTT); (1990) 23 STA 244 (Ram Kumar Roshanlal v. C.T.O.), [1995] 98 STC 155 (WBTT) (Chowdhury Waterproof Works v. M.L. Acharya, I.C. Taxes) and [1991] 192 ITR 502 (Cal) (Jorawar Singh Baid v. Assistant Commissioner of Income-tax). 6.. The learned lawyer for the respondents submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period exceeding one year from the date of seizure unless he states the reason in writing therefor and obtains sanction of the Commissioner in writing in respect thereof". The section by itself does not provide that an opportunity of being heard is to be given to the petitioner for according sanction for retention of the seized documents beyond one year. Still it has been decided by this Tribunal while interpreting the similar provisions of section 14(3A) of Act, 1941, clause (b) of the proviso that protection of invasion of the right of an individual to get back his books of accounts and documents makes it all the more necessary that an opportunity of hearing is afforded before retention is sanctioned [1995] 28 STA 211 (Sanjib Bothra v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (WBTT); (1990) 23 STA 244 and was held that the order of retention was liable to be set aside and accordingly the order sanctioning retention of the seized books of accounts was set aside. The same view was taken by the High Court, Calcutta, holding that communication of approval is a statutory obligation and failure of it shall invalidate further retention of the seized articles. In a case reported in [1995] 98 STC 155 (Chowdhury Waterproof Works v. M.L. Acharya, I.C. Taxes) this Tribunal held that the retention order must be communicated before the period of expiry prescribed under the law. It was also held that retention order communicated after the prescribed period shall have no legal existence as such shall be invalid. 8.. From all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order and remand the case back to the Commissioner for making fresh assessment because in the meantime the two years period of limitation had expired. Such direction to dispose of the case afresh can be given to the Commissioner by the Appellate Tribunal even when the period of limitation had expired since the provision did not curtail appellate powers of the Tribunal. 10.. On this principle it is submitted by the learned lawyer for the respondents that the period of limitation for one year though expired in this case, there would be no bar for giving a direction upon the concerned authority to initiate the proceeding for retention of the seized documents afresh. It is the contention of the learned lawyer for the petitioner that this deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opinion that the impugned order of extension of the period for retention of the documents for more than one year is liable to be set aside. The order of remand directing to initiate the proceeding afresh will be unjustified and illegal. 13.. The order dated October 12, 2001 passed by respondent No. 1 is accordingly set aside. It is directed that respondent No. 1 shall release the books of accounts, records and documents seized on October 20, 2001 forthwith. The application is thus allowed without costs. 14.. The order is read and delivered in open court. Direction has been given to the Revenue to return the documents forthwith. The learned lawyer for the petitioner submits that a cut-off date must be fixed for returning the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
