TMI Blog2000 (3) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was continued for a period of five days, the officer conducting the search had seized books of account and had also recorded statements of several persons. Ultimately, the impugned notice under section 158BC had been issued to the petitioner. Being aggrieved by the said notice, the petitioner has approached this court with a prayer that the said notice be quashed and the notice under section 142(1) be also quashed. The learned advocate, Shri Puj, appearing for the petitioner, has challenged the above-referred actions and notices issued by the respondent authorities mainly on the following grounds. It has been submitted by the learned advocate, Shri Puj, that the authorisation issued by the Director of Income-tax (Investigation) under section 132 of the Act was not proper and, therefore, the entire proceedings regarding the search are illegal. He has elaborated the above referred submission by submitting that as per the provisions of section 132 of the Act, the Director of Income-tax (Investigation) had not recorded his satisfaction properly and though, in fact, there was nothing on record to give necessary direction for conducting the search, he had given the direction to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax, Rajkot, dealing with the averments and allegations made in the petition. It has been submitted by him that before effecting the search and before passing an order under section 132 of the Act, the Director of Income-tax (Investigation), Ahmedabad, had given his authorisation on January 8, 1999, upon information supplied to him by his subordinate officers. He has placed before this court the notes, which are confidential in nature, for the perusal of this court. He has also submitted that the allegations about irregularities alleged to have been committed in the conduct of the search are not correct and he has submitted that the search was carried out in accordance with law. So far as handing over of the papers as required under the provisions of section 132(9A) of the Act is concerned, it has been submitted by him that the authorised officer, who had conducted the search was also an officer having jurisdiction over the petitioner-assessee and an affidavit to that effect has also been filed by the Deputy Director of Income-tax (Investigation), who himself was the authorised officer. In the circumstances, it has been submitted by the learned advocate that there was no v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search under section 132 was given by the Director of Income-tax (Investigation) on January 8, 1999. The learned advocate, Shri Puj, has relied upon the judgment delivered in the case of Madhya Pradesh Industries Ltd. v. ITO [1970] 77 ITR 268 (SC) and in the case of Janak Raj Sharma v. Director of Inspection (Investigation) [1995] 215 ITR 254 (P H), to substantiate the submissions made by him. Upon perusal of the ratio of the said judgments, it is very clear that in the case of Madhya Pradesh Industries Ltd. [1970] 77 ITR 268 (SC) no affidavit was filed by any officer to show as to why he had initiated action under the provisions of section 34(1) of the Indian Income-tax Act, 1922. There was nothing on record to show that the concerned officer had reason to believe that on account of omission or failure on the part of the assessee, income of the assessee had escaped assessment. The Supreme Court had ultimately come to a conclusion that looking to the facts of that case, the officer had no right to initiate proceedings under section 34(1) of the said Act. The facts of the said case cannot be compared with this case for the reason that comprehensive affidavits have been filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the said officer to send the documents seized by him during the search to the officer having jurisdiction over the petitioner-assessee. An affidavit stating the said fact has also been filed by the authorised officer. Thus, it is very clear that the provisions of section 132(9A) shall not apply in the instant case as the officer having jurisdiction over the assessee is also the authorised officer who had effected the search. The authorised officer, in his capacity as an officer having jurisdiction over the assessee is entitled to retain possession of the documents seized by him and, therefore, we do not see any substance in the submission of Shri Puj that the authorised officer had erred by not transferring the seized documents to an officer having jurisdiction over the petitioner-assessee. The next submission which has been made by the learned advocate, Shri Puj, is with regard to the validity of notices issued to the petitioner-firm and its partners in pursuance of section 158BC of the Act. It has been submitted by him that as the procedure with regard to transfer of the record from one officer to another officer was not followed, the notices issued under section 158BC and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, it has been submitted that the reasons are not recorded in the order. We have gone through the record and we have also perused the reasons which have been given by the concerned authority for transferring the case of the petitioner under section 127 of the Act. It is clear that the case of the petitioner has been transferred from Bhavnagar to Rajkot for administrative reasons. It has been submitted by the learned advocate, Shri Naik, and it has been stated in the affidavit filed by the Deputy Commissioner of Income-tax (Central Circle-1), Rajkot, that after completion of the work with regard to the search, the work pertaining to assessment was handed over to the office of the Commissioner of Income-tax (Central Circle-1). In the instant case, the search was carried out at Bhavnagar and as there is no office of the Commissioner of Income-tax (Central Circle-1), at Bhavnagar, for administrative reasons, it was thought proper by the transferring authority to transfer the case of the petitioner-assessee from Bhavnagar to the office of the Deputy Commissioner of Income-tax (Central Circle-1), Rajkot. The said administrative reason appears to be just and reasonable. Looking t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner and its partners from Bhavnagar to Rajkot, in our opinion, it would not make any difference whether the said reasons were communicated at an earlier point of time or not. Of course, now the reasons have already been communicated and upon perusal of the said reasons, we are satisfied that the said reasons are just and proper and the decision with regard to the transfer is in the interest of administration. Simply because the said reasons are not incorporated in the impugned order, the reasons would not become non-est. Looking to the ratio of the judgments cited by Shri Naik, we do not find any illegality in the order whereby the Proceedings have been transferred to the office of the Deputy Commissioner of Income-tax (Central Circle), Rajkot. Looking to the facts of the case and the reasons recorded hereinabove, we do not think that in this writ petition, at this stage, this court should interfere especially. when, as a result of the search, some material has already been found by the authorities. Moreover, even after the assessment is framed, it would be open to the petitioner to challenge the order of assessment by filing an appeal as per the provisions of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
