TMI Blog2013 (5) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... o the members. All these three brothers separated long back. The premises situated at 564/2, M.G Road, Indore which consists of two independent buildings namely-front building and back building having same Municipal Number. Out of the two separate buildings the front portion is in the occupation, possession and control of the petitioner HUF, his wife and two major sons namely-Nitesh Kumar Gupta and Rohit Kumar Gupta and is being used by the petitioner for its electrical business which is being carried in the name and style of M/s. Basant Electricals. The same front portion of the building is being used by Shri Omprakash Gupta and his family members as their residence. As regards the back side of the said premises at 564/2, M.G Road, Indore the same is in occupation and possession of other group of separated members of the family headed by Shri Rasnidhi Kumar Gupta, the elder brother of the Karta of the present petitioner HUF. The petitioner further claims that these two independent groups of family are not having any connection in any manner whatsoever regarding their business activities. 4. According to the petitioner on 11-3-2010 at 8:30 a.m the raiding party consisting of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of the writ petition. 8. Shri G.M Chaphekar, learned Senior Counsel for the petitioner has argued that factual aspects which have been pleaded in paragraphs 5.1 to 5.3 of the writ petition regarding formation of new HUF after partition of the larger HUF and the carrying of the business by both the separated groups independently having not been denied by the respondents, there remains no challenge to the petitioner's contention to the effect that it has no connection whatsoever with the business of the other separated group against whom only according to the petitioner the search and seizure was authorized. 9. The learned Senior Counsel for the petitioner referring to section 132 of the Act contended that for holding the search and seizure valid, the stric compliance of requirement of section 132 should be there which includes that the authority must be in possession of information and must form an opinion that there is reason to believe that the books of accounts or other documents which will be useful for or relevant to any proceedings under the Income Tax Act has not been, or would not be disclosed, or produced by any person to whom a summons or notice under the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under subsection (4) of section 22 of the Indian Income-tax Act, 1922, or under sub-section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other document as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, (rest is not relevant) 12. On a close reading of section 132, it appears that for exercising powers of search and seizure under section 132 of the Act, the authorized officer should possess information and in consequence of such information he should have reason to believe that any person to whom a summons or notice under section 37 of the Income-tax Act, 1922 or under sub-section (1) of section 131 of the Act or a notice under sub-section (4) of section 22 of the Indian Income-tax Act, 1922 or under sub-section (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the information cannot be examined by the court in the writ jurisdiction, but the existence of information and its relevance to the formation of the belief is open to judicial scrutiny because it is the foundation of the condition precedent for exercise of a serious power of search of a private property or person, and to prevent violation of the privacy of a citizen. The courts can also examine on the material available that any reasonable person can have arrived at a conclusion that the search or seizure should be authorized. 14. The sum and substance of the judgments cited by both the sides and the principle that emerged has been summarized by Gujarat High Court in the case of Prabhubhai v. R.P Meena (supra) as under:- (a) The authority must be in possession of the information and must form an opinion that there is reason to believe that the article or property has not been or would not be disclosed for the purposes of the Act. (b) The information must be something more than mere rumour or gossip or hunch. (c) The information must exist before the opinion is formed. (d) The authorised person must actively apply his mind to the information in his possession and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for residential colony at Village-Jaitpur, Tehsil-Sanver, District-Indore by M/s. K.S City Pvt. Ltd. In this respect, though names of various companies belonging to the other group finds place but there is no mention of the name of the petitioner or about existence of any information about the petitioner. Except the mention of the petitioner to the extent in fact, originally his family is engaged in the electrical business run in the name of M/s. Basant Electricals, headed by Shri Omprakash Gupta are having close business relations with K.S Oils Group as they supplies electrical goods to the K.S Oils Ltd. This mention of M/s. Basant Electricals headed by Omprakash Gupta was for the purpose of stating the fact that originally the other group against whom the information was there was running the business in the name of M/s. Basant Electricals who is supplying electrical goods to K.S Oils Ltd. Apart from reference only to this extent, which cannot be said to be an information at all there is not even a word about the petitioner's connection in any way with the other group. Having recorded this the ADIT (Gwalior) included the name of the petitioner in the list of companies and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other groups) and then the name of the petitioner is shown in handwritten letters. 19. From the aforesaid, it appears that merely because originally the members of family of other group were engaged in the electrical business of the larger HUF and that the petitioner in its business of electrical goods is supplying goods to the other group company namely-K.S Oils Limited, the petitioner has been implicated. The issuance of authorization for search and seizure warrant in the manner in which the description of the petitioner and its name has been recorded, without there being any information in possession about the petitioner and without recording satisfaction about not producing the relevant books of account and other documents, if summons or notice would be issued to the petitioner is, in our considered view, cannot be sustained. We are of the view that the facts recorded in the file do not constitute any information which can be said to have any rational connection with the petitioner for forming a belief, which is a condition precedent for issuance of Warrant of Authorization for search and seizure. Thus in the absence of compliance of the requirement, of section 132 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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