TMI Blog1991 (11) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... the business premises of the firms of Messrs. Shah Tarachand Shankarlal (Cotton) and (M. L.), Messrs. T. S and Co., Messrs. T. S. Complex and Messrs. T. S. Enterprises NCM, Hubli. Another warrant has also been issued on the suspicion that the very same firms are suspected of having kept such books, documents, money, bullion, jewellery or other valuable articles or things in the common residence of some of the partners of the firms referred to above, near Hotel Woodlands, Keshavapur, Hubli. This petition is filed in the individual capacity of the petitioner though he is also stated to be one of the partners of the firms in question. It is stated that no warrant of authorisation was issued in the name of the petitioner but the same was onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd were not seized but merely taken note of or inventorised and the petitioner was asked to withdraw a sum of Rs. 25 lakhs, which sum is said to have been seized; (iii) the records of assessment or other proceedings relating to the petitioner were pending before one authority and the same were transferred to another authority and the latter authority has passed the order in question under section 132(5) of the Act without due notice to the petitioner ; (iv) before passing the order under section 132(5) of the Act, notice under rule 112 was not given to the petitioner but only to some of the firms in question and, therefore, the order as against the petitioner could not have been passed. It is contended on behalf of the respondent that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount or other documents as required in a summons or the possibility of non-production by a person of any books of account or other documents which are useful or relevant to proceedings under the Act or possession by any person of any money, bullion, jewellery or other valuable article or thing representing either wholly or partly income or property which has not been or would not be disclosed for the purposes of the Act, a search can be conducted by the authorised officer under a warrant of authorisation. Rule 112(2) prescribes certain forms and the manner in which such authorisation can be made. It is submitted in the present case that the most serious omission contained in the warrant of authorisation is the name of the person whose pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrant of authorisation is only that the petitioner's firms having not produced the books of account or other documents which will be useful for or relevant to proceedings under the Act and are not likely to be produced or is in possession of money, bullion, jewellery or other valuable articles or things. Therefore, there is no reference at all in the warrant of authorisation that such documents or money, bullion, jewellery or other valuable article or thing is in the possession of the petitioner in his individual capacity. As a necessary consequence, the mere mention of residential premises does not enable the Department to effect seizure either of gold, jewellery or other articles of documents and hence it must be held that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there could be any search to seize those documents or other valuable property. Seizure implies forcible taking over from the owner or person who has possession and who is unwilling to part with the possession and the Supreme Court, with approval, refers to the decision in Ramesh Chander v. CIT [1974] 93 ITR 244 (P H) as well as two other decisions in Motilal v. Preventive Intelligence Officer [1971] 80 ITR 418 (All) and in Laxmipat Choraria v. K. K. Ganguli [1971] 82 ITR 306 (Cal) though in a different context. But the concept of seizure as explained by the Supreme Court is forcible taking over from the owner or person who has possession and who was unwilling to part with the possession. Admittedly, in the present case, Rs. 25 lakhs w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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