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2015 (7) TMI 194

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..... al residence No. XD -A1, Char Imli, Bhopal. The search was conducted as a consequential search after the search was carried out at the premises of Dr. Yogi Raj Sharma, the then Director of Department of Public Health and Family Welfare, Government of Madhya Pradesh. The petitioner no.1 was posted as Home Secretary in the Government of Madhya Pradesh at the relevant time when the search was carried out on 30.5.2008 by the respondents on the basis of an authorization issued by respondent no.4. During the search all the documents, books, vouchers available at the premises of the petitioners were taken away by the respondents without any verification. The aforesaid search has been alleged to be conducted by the respondents with a predetermined belief that all the assets in the house of petitioners were unaccounted and undisclosed. As per the petitioners, 31 pages were seized from the possession of the petitioners out of which 25 pages were photocopies of their official passport and rest 6 pages were either dumb documents or were not related with the petitioners. Similarly 31 pages were seized from petitioner no.1's father-in-law, who had retired from Indian Army in 1984 and was res .....

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..... ents. 4. In reply to it Shri Vikas Pahwa, learned Senior Advocate appearing on behalf of petitioners submitted that the conduction of search and seizure was entirely mala fide on the part of respondent no.4 and in fact it is a mala fide search because the petitioner no.1 who was the Home Secretary at the relevant time was assigned with the work of allotment of houses. That the officer who had issued warrant of authorization Shri S.S. Rana applied for allotment of the house on 23.1.2008. The petitioner who was In charge for the allotment of the house, processed the application, but took near about 4 months time. Because of the aforesaid delay of process the respondent no.4 who was the Director of Income Tax Investigation became highly annoyed with the petitioner and directly applied to the Chief Minister for the allotment of the house. The said house was directed to be allotted by the Chief Minister on 20.5.2008. Immediately thereafter, the respondent no.4 on 28.5.2008 issued warrant of authorization and on 30.5.2008 the search was conducted. Stating aforesaid it was submitted that the entire action on the part of respondent is mala fide and tainted with the act of prejudiced-mind .....

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..... , no undisclosed property, money or jewellery was found in the possession of petitioners in the search, but the respondents are taking into consideration that the entire amount reflecting in the document Annexure RJ-1 was paid to the petitioners and on the basis of only this entire amount has been made addition in the income of petitioners, without any other evidence. 7. In reply to it, Shri Sanjay Lal, learned counsel for respondents submitted that these question cannot be decided in this writ petition and the petitioners may assail the order of appellate authority before the Income Tax Appellate Tribunal, in accordance with law. 8. In this case the short point involved is whether the document Annexure RJ-1 in which word 'ch' has been written, whether it indicates to the petitioner or it is 'etc' or could have been basis for forming an opinion for issuance of search warrant against the petitioner may be looked into. 9. The learned counsel for Revenue has produced the satisfaction note in a sealed cover for the perusal of this Court and from the perusal of satisfaction note it appears that the satisfaction note is in respect of three officers including petitioner .....

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..... by the exercise of the power a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must have been exercised strictly in accordance with the law or only for the purposes for which the law authorizes it to be exercised. 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 his action. If the action is maliciously taken or power under the section is exercised for a collateral purpose, it is liable to be struck down by the Court. If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed. 11. In H. L. Sibal v. CIT [1975] 101 ITR 112 (Punj & Har.) a Division Bench of Punjab and Haryana High Court held that the word information has been defined as 'that of which one is apprised or told'. The word 'reason' has been defined as a 'statement of fact employed as an argument to justify or condemn some act. On the other hand the word 'conclusion' is defined as the judgment arrived at by reasoning; an inference; deduction, etc'. A necessary concomitant of this approach is .....

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..... this Court is not looking to the reasons of satisfaction, but in the present case it appears that the warrant of authorization was issued merely on hypothecated grounds, which is not sustainable under the law. 13. A Division Bench of this Court in Gaya Prasad Pathak v. Asstt. CIT [2007] 290 ITR 128/162 Taxman 307 (MP) has considered that in the assessment proceedings the authorities have no power to consider the validity of authorization under section 132(1) of the Act and the remedy available to the petitioners is by way of filing writ petition. 14. In the present case, we have examined the entire proceedings, satisfaction note, the document Annexure RJ-1, which is the basis for issuance of warrant of authorization and ultimately the seizure memo and find that the entire action which was initiated and taken was based on without any sufficient ground or material and it appears that because of dispute in respect of allotment of house, the respondents could get an opportunity to issue warrant of authorization, resultantly search in the premises of petitioners as conducted. 15. In view of aforesaid, the action of the respondents cannot be sustained under the law and accordingly th .....

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