TMI Blog1983 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar and also that he did not have any papers or documents regarding the ownership or possession of the amount. The Commissioner was informed by the IAC that no person by the name of Vinod Kumar Jaiswal was borne on the General Index Register of Income-tax assessees of the ITO at Mirzapur. The Commissioner issued a requisition under s. 132A(1), I.T. Act, 1961, (for brief, " the Act "), to the Station Officer-in-charge, Govt. Railway Police, Moghal Sarai, requiring him to hand over the seized sum of money to the ITO (Sri S. N. Kapoor), who had been authorised by a warrant of authorisation to receive it. The IAC of Varanasi authorised search of the residential premises of Rajendra Kumar Pandey, a partner of M/s. Vindhya Metal Corporation, Imamganj, Mirzapur, which is the first petitioner in this writ petition in consequence of a survey under s. 133A of the Act, which was authorised by the ITO, 'A' Ward, Mirzapur, for the search of the business premises of the Corporation on December 29, 1981. The search warrant was issued on the view that Rajendra Kumar Pandey was concealing the real books of account, cash, bullion, jewellery and other valuables which he would not have produced i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sum of Rs. 4,63,000. Meanwhile, on January 13, 1982, the ITO, Mirzapur, called upon the Corporation to explain the nature of possession and the source of acquisition of the assets seized by the Department, namely, cash amounting to Rs. 17,353 on December 30, 1981, and the sum of Rs. 4,63,000 seized by the Govt. Railway Police, Moghal Sarai, on December 25, 1981. On the following day, namely, January 14, 1982, a notice was served upon Rajendra Kumar Pandey as well by the ITO, 'A' Ward, Mirzapur, to explain the nature of possession and the source of acquisition of Rs. 17,353 seized on December 30, 1981. On February 18, 1982, the present petition was filed. This was before the disposal of the criminal revision by this court. The petitioners are the Corporation and its two partners, Rajendra Kumar Pandey and Santosh Kumar Gupta, while arrayed as respondents are the CIT, Allahabad, and the ITOs of Varanasi and Mirzapur, the first of them being the officer authorised by the CIT. When filed, the petition contained the prayers primarily for quashing the order of attachment of money of January 4, 1982, and the authorisation of search warrant as well as the notices dated January 13 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be followed consequent upon such seizure or requisition and the manner in which the documents or money is to be dealt with. The necessary portions of these provisions which concern us for the disposal of the writ petition, are these : " Section 132. (1) Where the Director of Inspection or the Commissioner or any such Deputy Director of Inspection or Inspecting Assistant Commissioner as may be empowered in this behalf by the Board, in consequence of information in his possession, has reason to believe that . ...... (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 Income-tax Act, 1922 (11 of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be, disclosed for the purposes of the Indian Income-tax Act, 1922 (11 of 1922), or this Act (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssets to the requisitioning officer. (2) On a requisition being made under sub-section (1), the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, of that sub-section shall deliver the books of account, other documents or assets to the requisitioning officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody ..........." Both these provisions in sub-s. (1) contemplate that an order of authorisation can be made by the Commissioner or the Assistant Commissioner where- (i) in consequence of information in his possession, (ii) be has reason to believe, that (iii) ............ (a) any person when called upon would not produce or cause to be produced any books of account which will be useful for, or relevant to, any proceeding under the Income-tax Act, 1922, or under the Act, (b) any person is in possession of money, etc., which represents either wholly or partly income which has not been or would not be disclosed for the Purposes of the Income-tax Act, 1922, or of the Act. And, in a case governed by cl. (c) of s 132A(1), assets have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income-tax assessees of Income-tax Offices at Mirzapur. In consequence of information thus received, the deponent had reasons to believe that the money seized by G.R.P. authorities represented, either wholly or in part, income which had not been or which would not be disclosed for the purposes of the I.T. Act by the person from whose possession the money has been seized. The deponent, therefore, issued a requisition under s. 132A(1) of the I.T. Act to the Station House Officer, G.R.P., Moghalsarai, requiring him to hand over the seized sum of money to the authorised ITOs ...... The deponent had satisfied himself regarding existence of conditions precedent to issuing of a warrant of requisition under s. 132A(1). Enquiries made by the IAC, Varanasi, and report to the deponent had clearly shown that the said Sri Vinod Kumar Jaiswal was not having any papers/documents to explain the ownership/possession of the seized sum and he was not assessed to income-tax ... it is submitted that all the requirements of s. 132A(1) were duly satisfied before the deponent issued the requisition under the said provision. The facts have already been given above. The deponent is prepared to place th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act. Without anything more than what was actually there before the Commissioner, how could it have been assumed that he would not have disclosed it for purposes of any proceedings under the Act. There was nothing before the Commissioner to suggest that it was, in fact, wholly or in part, income of any person connected with Vinod Kumar Jaiswal so as to induce a belief that, if called upon, Vinod Kumar Jaiswal would not have disclosed it for the purpose of the Act. The mere fact that Vinod Kumar Jaiswal was in possession of this amount and did not have any documents with him regarding its ownership or possession could not be treated as appears to have been done by the Commissioner as information relatable to a conclusion that it represented income which would not have been disclosed by Vinod Kumar jaiswal for purposes of the Act. Mere unexplained possession of the amount, without anything more, could hardly be said to constitute information which could be treated as sufficient by a reasonable person, leading to an inference that it was income which would not have been disclosed by the person in possession for purposes of the Acts. After all, the belief, for purposes of s. 132A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 3, 1982. This court set aside the order of the Magistrate dated February 3, 1982, in Criminal Revision No. 177 of 1982 and permitted the I.T. Department to take possession of the sum of Rs. 4,63,000. The challenge to the validity of the order dated December 4, 1982, was not pressed at the time of hearing of the petition for it was said by Sri R. K. Gulati that he will pursue his remedy separately about it as it may require going into some disputed questions whether its operation was extended beyond the period of six months or not and if so whether it had been done in accordance with law. We have, therefore, refrained from expressing any opinion about this order. The other action in challenge in the present petition relates to the seizure made on December 30, 1981, of some books of account and of the sum of Rs. 17,353 of the petitioner firm from the residence of one of the partners, namely, Rajendra Kumar Pandey. The submission of Sri Gulati in this respect is that the condition precedent for exercise of power by the IAC of authorising the ITO to carry on the search and seizure was not satisfied. Smt. Shalini Sharma, IAC (Assessment) Range 2, Varanasi, has sworn a counter-aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mt. Shalini Sharma is that on December 29, 1981, the ITO, " A " Ward, Mirzapur, authorised a survey of the business premises of M/s. Vindhya Metal Corporation under s. 133A and it was in pursuance thereof that a consequential search was authorised by the IAC of Varanasi of the residential premises of R. K. Pandey. This search warrant, according to the counter-affidavit, was issued after recording the reasons and belief that R. K. Pandey was concealing real books of account, cash, bullion, jewellery and other valuables which would not be produced in response to summons under s. 131 and notice under s. 142(1) of the Act. The counter-affidavit was sworn on February 15, 1983. In the rejoinder affidavit sworn in the month of February itself, R. X. Pandey pointed out that, in that event, the respondents were not entitled to retain the money with them and further that they were not entitled to remove any books of account from the premises and retain them. The respondents did not, at the time of the hearing of the petition, make any attempt to justify the stand contained in the counter-affidavit of Smt. Shalini Sharma. No counter-affidavit was sworn by the IAC who authorised the search and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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