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TMI Blog1983 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... rded reasons of the Authorised Officer/Income-tax Officer on which such approval is based for the retention of the seized books of account and documents by the Department for a period exceeding 180 days from the date of seizure under s. 132(8) of the I.T. Act, 1961. Since in all these appeals the facts giving rise to the aforesaid question are almost similar, it will suffice to indicate briefly the facts obtaining in M/s. Oriental Rubber Works' case (Civil Appeal No. 1652 of 1973). Under a proper authorisation issued in that behalf under s. 132(1) of the Act, on 17th February, 1965, a search was conducted by the I.T. Dept. in the factory premises at Kantalia as well as the offices and godown at Mahatma Gandhi Road, Calcutta, belonging to the respondent-assessee and various books of account and documents were seized from the aforesaid premises. After lawfully carrying out the aforesaid search and seizure, the respondent assessee was given opportunity to inspect the seized books and documents as also to make copies of the entries. The concerned ITO then issued a notice to the respondent-assessee under s. 142(1) of the Act in connection with its assessment for the assessment year 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidly completed on 5th February, 1969, long before the respondent-assessee approached the court and obtained a rule nisi. A learned single judge of the High Court held that the seized books of account and other documents could not be retained beyond the period of 180 days without a complete and effective order of approval for such extended retention of the said books and documents and that since the approval of the Commissioner and the recorded reasons therefor had not been communicated to the respondent-assessee, the retention of the books and documents beyond 180 days was unlawful. The learned judge, therefore, ordered the issuance of a mandamus directing the Commissioner and the concerned ITO to return all the seized books and documents and he further ordered that the concerned ITO shall be at liberty to complete the assessment for the year 1964-65, after the return of the said books and documents and after issuing afresh statutory notices under s. 142(1)1143(2) of the I.T. Act to the respondent-assessee. In rendering the aforesaid decision, the learned judge followed two earlier decisions of his own High Court in Mahabir Prosad Poddar's case [1970] 77 ITR 343 (Cal), decided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, according to the counsel for the Revenue, the unauthorised retention of the seized books and documents beyond 180 days, if any, could not render the assessment for the year 1964-65, properly made, invalid. Counsel further pointed out that the respondent-assessee had even preferred appeals to higher authorities challenging the said assessment on merits. It may be stated that counsel for the respondent-assessee in this appeal conceded that in all the circumstances of the case the assessment already made on 5th February, 1969, should be allowed to stand subject of course to the result of the appeals that have been preferred by the respondent assessee against it. In this view of the matter, the second contention urged by counsel for the Revenue in this appeal has to be accepted and the assessment for the assessment year 1964-65, made on 5th February, 1969, subject as aforesaid, to be upheld. That leaves for consideration the first contention, which as we have indicated earlier, is common to all the appeals. In order to decide the aforesaid contention it will be desirable to set out the material provisions of s. 132 of the Act, namely, sub-ss. (8), (10) and (12) thereof, which run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son from whose custody such books or documents have been seized or the person to whom those belong) acquires a right to the return of the same forthwith. It is true that sub-s. (8) does not in terms provide that the Commissioner's approval or the recorded reasons on which it might be based should be communicated to the concerned person but in our view since the person concerned is bound to be materially prejudiced in the enforcement of his right to have such books and documents returned to him by being kept ignorant about the factum of fulfilment of either of the conditions, it is obligatory upon the Revenue to communicate the Commissioner's approval as also the recorded reasons to the person concerned. In the absence of such communication the Commissioner's decision according his approval will not become effective. Moreover, sub-s. (10) confers upon the person legally entitled to the return of the seized books and documents a right to object to the approval given by the Commissioner under sub-s. (8) by making an application to the Central Board stating therein the reasons for such objection and under sub-s. (12) it is provided that the Central Board may, after giving the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X
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