9911796707
TMI Blog2004 (6) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax), Patna, under section 158BC of the Act making assessment for the block period 1987-88 to 1997-98 (up to November 27, 1996). The factual matrix for disposal of the appeal is that the appellant is a dental surgeon and employed under the Government of Bihar. One Dr. O.P. Diwakar was an employee of the Animal Husbandry Department and was a tenant in the house of the appellant situate at Road No. 20, Gardaribagh, Patna. He was involved in the animal husbandry scam involving defalcation and misappropriation of an amount of rupees one thousand crores. A search under section 132 of the Act was conducted against the said Dr. O.P. Diwakar, the appellant and others. In the case of the appellant the search commenced on November 27, 1996, and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority adopted best judgment assessment procedure under section 144 of the Act on the basis of the information available on record and the information furnished by the assessee in his examination under section 132 of the Act. During the course of search the assessing authority found that the appellant has salary income from the Government. This apart he has professional income from his private dental clinic running at Kurjee and Danapur, income from house property and income from other sources and accordingly made the assessment under section 158BC of the Act for the block period by order dated January 28, 1998. The appellant filed an appeal before the Tribunal and the Tribunal made certain modifications with regard to income and others an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. Learned counsel appearing for the Department, on the other hand, submitted that section 158BE of the Act provides time limitation for completion of block assessment and according to sub-section (1)(a) of section 158BE of the Act which is applicable in the present case, the order for assessment of block period shall be passed within one year from the end of the month in which the last authorisation for search under section 132 of the Act was executed. In this case, the last authorisation against the appellant and others was issued on December 11, 1996, for the search of the bank locker at Central Bank of India, Bettiah, which was executed on January 9, 1997, and the order of assessment has been passed on January 28, 1998, and as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns the name of the appellant and others. In pursuance of which the search was conducted on January 9, 1997, and the panchanama shows that the warrant of authorisation was in the name of the appellant and others and that was executed on January 9, 1997. There is no legal bar in issuance of a common authorisation. The fact that the locker was in the name of other family members of the appellant with regard to which authorisation for the search was also issued will not make any difference when the authorisation under section 132 of the Act also contains the name of the appellant. In pursuance of the said authorisation, the search was made on January 9, 1997. According to the relevant provision of section 158BE of the Act, the order for assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. Search and seizure cannot be ordered in a casual manner. The authority has to be satisfied on the basis of the material in its possession and record reasons for coming to the conclusion that it has reason to believe that search and seizure is necessary for any of the purposes mentioned under section 132 of the Act. If there are materials to support the formation of opinion by the concerned authority under section 132 of the Act, the court cannot substitute its own opinion for deciding the question as to whether the authorisation should have been issued or not. If the power is exercised without any material or for a collateral purpose or is mala fide then the proceeding initiated on the basis of search and seizure is liable to be qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance with the law and 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. But where power is exercised bona fide, and in furtherance of the statutory duties of the tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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