TMI Blog2006 (11) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. Since these appeals arise from the common order passed by the High Court, we also propose to dispose of them by a common order. Facts: The facts relevant for disposing of these references in short are: P. R. Metrani and Y. R. Metrani were two brothers and are the members of the joint Hindu family. P. R. Metrani (HUF) assessee was a partner in a firm called Mis. R. N. Metrani and Sons. Y. R. Metrarii was also a partner in this firm. P. R. Metrani as well as Y. R. Metrani have died during the pendency of these cases. A search of the residential premises Ranganatha Nilaya was conducted by the Income-tax, Central Excise and Customs Departments on June 30, 1982 and July 1, 1982, and as well as the business premises where the business of the firm was being conducted. The residential premises of J. J. Bakale, nephew of P. R. Metrani were also searched. The search brought to surface unaccounted money, gold biscuits, gold jewellery, silver etc. besides some important documents. For the purpose of assessment for the assessment years 1981-82 and 1982-83 three documents were found to be relevant by the Assessing Officer and they were marked as PRM-1, PRM-7 and PRM-13 at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trani. The appellant being aggrieved filed appeals before the Commissioner (Appeals). The Commissioner (Appeals) by separate order disposed of the appeals relating to the assessment years 1981-82 and 1982-83. He examined the issue including certain credits, and, on September 19, 1988 confirmed the additions barring the sum of Rs. 36,000 for the assessment year 1982-83. The orders of the assessing authority as well as the Commissioner (Appeals) are based on the presumptions in terms of section 132 (4A) of the Act. It was held that the presumptions under section 132(4A) were not confined to the orders passed under section 132 only, but, were available for framing the regular assessments as well. The assessee being aggrieved filed a further appeal before the Incometax Appellate Tribunal, Bangalore (for short" the Tribunal"). The Tribunal relying upon the judgment of the Allahabad High Court in the case of Pushkar Narain Sarraf v. CIT [1990] 183 ITR 388, on the scope of section 132(4A) held that the presumptions under section 132(4A) are confined to the framing of the order under section 132(5) only and are not available for framing the regular assessment. The Tribunal accepted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th. The Allahabad High Court in Pushkar Narain Sarrafs case [1990] 183 ITR 388, has held that the presumption arising under section 132(4A) is available only in regard to and in the context of search and seizure and the same was not available for framing the regular assessment. That sections 132 to 132B of the Act embody an integrated scheme laying down comprehensively the procedure for search and seizure and the power of the authorities making the search and seizure to order the confiscation of the assets seized under section 132 of the Act. The presumption arising under sub-section (4A) of section 132 applies only in relation to the provisional adjudication which is contemplated under section 132(5) and the same was Clot available for framing the regular assessment. Subsequently the High Court of Delhi in Daya Chand v. CIT [2001] 250 ITR 327, has taken a somewhat similar view and has held "that presumption arising under section 132(4A) must be held to be applicable only in relation to the provisional adjudication as contemplated under sub-section (5) of section 132 and the presumption cannot be said to have the effect of excluding the application of section 68." The Kamata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumptive value is total in so far as section 132(5) is concerned, but in so far as other proceedings are concerned it is only a rebuttable presumption. Therefore, the finding of the Tribunal in this regard in our view requires our interference. It has been further held at page 254 as under: "Therefore, it is clear to us that the presumptive value to the documents is available in respect of an order to be passed under the Act including an order under section 132(5) of the Act. Therefore, a reading of the provision with regard to the seized documents clearly indicates that its presumptive value cannot by any stretch of imagination be restricted only to section 132(5) as held by the Tribunal. It is a 'non-rebuttable presumption' under section 132(5) of the Act and in other cases it is a 'rebuttable presumption'. Mr. G. Sarangan, further has placed before us a judgment of the Allahabad High Court in the case of Pushkar Narain Sarraf v. CIT [1990] 183 ITR 388. With respect we are unable to subscribe to the view of the decision of the Allahabad High Court. We have carefully gone through the said judgment. We find in the said case that no reasons are forthcoming as to why the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son by whom it purports to have been so executed or attested. (5) Where any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in sections 132A and 132B referred to as the assets) is seized under sub-section (1) or sub-section (lA), the Assessing Officer, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry as may be prescribed, shall, within one hundred and twenty days of the seizure, make an order, with the previous approval of the Deputy Commissioner, (i) estimating the undisclosed income (including the income from the undisclosed property) in a summary manner to the best of his judgment on the basis of such materials as are available with him; (ii) calculating the amount of tax on the income so estimated in accordance with the provisions of the Indian Income-tax Act, 1922 (11 of 1922), or this Act; (iia) determining the amount of interest payable and the amount of penalty imposable in accordance with the provisions of the Indian Income-tax Act, 1922 (11 of 1922), or this Act, as if the order had been the order of regular assessment; (iii) specifying the amount that will be requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to retain the books of account and other items for a period exceeding 30 days after all the proceedings under the Act in respect of the years for which the books of account, other documents, money, bullion, jewellery or other valuable articles or things are relevant are completed. Under sub-section (9) the person from whose custody the books of account and other documents are seized is entitled to make notes thereof and take extracts therefrom in the presence of the authorized officer, Sub-sections (9) and (10) are of the same nature. Subsection (11) provides that if any person objects for any reason to an order made under sub-section (5), he can within 30 days of the date of such order make an application to the Chief Commissioner stating the reasons therein for such objections and requesting for appropriate relief in the matter. Further, sub-section provides for applicability of the Code of Criminal Procedure and making of rules by the Board in search or seizure, etc. The section considered as a whole, shows that it has its own procedure for search, seizure, determination of the point in dispute, quantum to be retained and also the quantum of the tax and interest on the undi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of such books of account and other documents are signed by such person or are in the handwriting of that particular person. Raising of such presumption has been enacted by the Legislature to enable the assessing authority to make a provisional adjudication within the time frame prescribed under section 132. Otherwise it may not be possible to do so. The object of introduction of section 132 is to prevent the evasion of tax, i.e., to unearth hidden or undisclosed income or property and bring it to assessment. It is not merely an information of undisclosed income but also to seize money, bullion, etc., representing the undisclosed income and to retain them for the purposes of realization of taxes, penalties etc. Search and seizure is a serious invasion into the privacy of the person. Section 132 which is a complete code by itself provides that the money, bullion or the books of account etc. should not be retained unnecessarily and that the provisional assessment made under section 132 for the purpose of retention of the books is passed within a specified time in accordance with law. It provides that the books of account, money and bullion which are not required are not retain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of any search under section 132, any money, bullion, jewellery or other valuable articles or things or any books of account etc. are tendered by the prosecution in evidence against the person concerned, then the provisions of sub-section (4A) of section 132 shall, so far as may be, apply in relation to such assets or books of account or other documents. This clearly spells out the intention of the Legislature that wherever the Legislature intended to continue the presumption under sub-section (4A) of section 132, it has provided so. It has not been provided that the presumption available under section 132 (4A) would be available for framing the regular assessment under section 143 as well. This is also evident from the fact that whereas the Legislature under section 132(4) has provided that the books of account, money, bullion, jewellery and other valuable articles or things and any statement made by such person during examination may thereafter be used as evidence in any other proceedings under the Act it has not provided so under sub-section (4A) of section 132. It does not provide that the presumption under section 132(4A) would be available while framing the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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