TMI Blog2021 (12) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken by the officials of the Department under authorisation, they are not obliged to furnish any document to any public servant in respect of such matters relating to the assessee against whom search and seizure is taken up. Section 293 of the Act mandates a bar of institution of suits in civil Courts. The entire lis that is now generated between the parties is required to be considered on the touchstone of the aforesaid provisions of the Act. Search and seizure proceedings were initiated against the 2nd respondent/complainant, who is a Member of the Legislative Assembly of the State of Karnataka. The search and seizure proceedings led to seizing of several documents, incriminating materials and a particular diary. The petitioners were empowered to conduct search and seizure of the said documents under Section 132(4) of the Act. Section 132(4-A) also deals with, where any books of accounts, other documents, money, bullion, jewellery or other valuable articles are found in the possession or control of any person in the course of search it is presumed that they belong to the assessee. Therefore, those incriminating documents including the diary were seized by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the diary. Since the FIR could not have been registered against the petitioners in view of the specific bar under Section 293 of the Act, the aftermath of such registration would be rendered without authority of law. What the Police want to investigate is the act of search and seizure done by the petitioners, communication and police notice that are sent to the petitioners. Therefore, it cannot be urged by the learned senior counsel that the FIR names nobody and the writ petition would not be maintainable. This submission deserves to be rejected and is rejected. As per PARMESHWARI DEVI SULTANIA AND OTHERS [ 1998 (3) TMI 3 - SUPREME COURT ] held that the trial Court and the High Court were not correct in rejecting the contention of the revenue and holding that the suit was not barred under Section 293 of the Act. The purport of Section 293 of the Act, is considered in its affirmation. Therefore, the proceedings initiated is rendered unsustainable in view of Section 293 of the Act and the subsequent Police Notice seeking the diary alone is rendered flawed and any further proceedings taken thereto by the 3rd respondent against the petitioners are all rendered unsustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges that offences punishable under Sections 218, 193, 199, 182, 341, 406, 409, 457, 380, 466, 471, 472, 166-A read with Sections 34, 109 and 120-B of the IPC. The complaint resulted in registration of a FIR for the aforesaid offences on 28-02-2017, in Crime No.52 of 2017. Even at this point in time, the petitioners did not knock the doors of this Court as the FIR registered was against unknown persons. What triggered filing of the petition before this Court is a Police Notice dated 13.04.2017, issued by the 3rd respondent directing the 1st petitioner to hand over the diary that was seized during the raid conducted on the residence of the complainant. It is then, the petitioners could come to know that a FIR had been registered against them. This was replied by the petitioners on 20.04.2017, contending that the FIR could not have been registered against them as they were performing official duty in terms of Section 132 of the Act and protection under Section 293 of the Act was available to the petitioners. 5. The 3rd respondent did not stop with this communication but again directed the 1st petitioner to divulge the names of persons who had conducted the search and seized the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice by this writ petition would not be maintainable. 11. I have given my anxious consideration to the submissions made by the respective learned counsel and the learned senior counsel and have perused the material on record. 12. The afore-narrated facts are not in dispute and would not require reiteration. Before embarking upon the journey of consideration of facts of the case at hand, I deem it appropriate to notice the provisions of the Income-Tax Act insofar as they are germane for consideration of the lis. Section 132 of the Act deals with search and seizure and reads as follows: 132. Search and seizure.--(1) Where the Principal Director General or Director General or Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or Additional Director or Additional Commissioner, or Joint Director or Joint Commissioner in consequence of information in his possession, has reason to believe that-- (a) any person to whom a summons under sub-section (1) of Section 37 of the Indian Income Tax Act, 1922 (11 of 1922), or under sub-section (1) of Section 131 of this Act, or a notice under sub-section (4) of Section 22 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer has reason to suspect that such person has secreted about his person any such books of account, other documents, money, bullion, jewellery or other valuable article or thing; (ii-b) require any person who is found to be in possession or control of any books of account or other documents maintained in the form of electronic record as defined in clause (t) of sub-section (1) of Section 2 of the Information Technology Act, 2000, to afford the authorised officer the necessary facility to inspect such books of account or other documents; (iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search: Provided that bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorised officer shall make a note or inventory of such stock-in-trade of the business. (iv) place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom; (v) make a note or an inventory of any such money, bullion, jewellery or other v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r other valuable article or thing in respect of which an officer has been authorised by the Principal Director General or Director General or Director or any other Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or Additional Director or Additional Commissioner or Joint Director or Joint Commissioner]to take action under clauses (i) to (v) of sub-section (1) are or is kept in any building, place, vessel, vehicle or aircraft not mentioned in the authorisation under sub-section (1), such Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, notwithstanding anything contained in Section 120, authorise the said officer to take action under any of the clauses aforesaid in respect of such building, place, vessel, vehicle or aircraft. Explanation.- For the removal of doubts, it is hereby declared that the reason to suspect, as recorded by the income-tax authority under this sub-section, shall not be disclosed to any person or any authority or the Appellate Tribunal. (2) The authorised officer may requisition the services of any police officer or of any officer of the Central Government, or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document, stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested. (emphasis supplied) Section 138 of the Act deals with disclosure of information in respect of an assessee, which reads as follows: Section 138. Disclosure of information respecting assessees: (1) (a) : The Board or any other income- tax authority specified by it by a general or special order in this behalf may furnish or cause to be furnished to- (i) any officer, authority orbodyperformingany functions underany law relating to the imposition of any tax, duty or cess, or to dealings in foreign exchange as defined in clause (n) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999); or; (ii) such officer, authority or body performing functions under any other law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst whom search and seizure is taken up. 13. Section 293 of the Act mandates a bar of institution of suits in civil Courts. The entire lis that is now generated between the parties is required to be considered on the touchstone of the aforesaid provisions of the Act. Search and seizure proceedings were initiated against the 2nd respondent/complainant, who is a Member of the Legislative Assembly of the State of Karnataka. The search and seizure proceedings led to seizing of several documents, incriminating materials and a particular diary. The petitioners were empowered to conduct search and seizure of the said documents under Section 132(4) of the Act. Section 132(4-A) also deals with, where any books of accounts, other documents, money, bullion, jewellery or other valuable articles are found in the possession or control of any person in the course of search it is presumed that they belong to the assessee. Therefore, those incriminating documents including the diary were seized by the respondents during search. Section 138 of the Act, deals with disclosure of information in respect of assesses. 14. The aftermath of search is what is required to be considered on the touchston ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not present in Bangalore and when my wife was alone in the house and she was not in a position to object for such illegal processes where the brute attack devoid of legal sanctity was orchestrated without essential requisite of the search by the Income Tax Officials. The officials did not submit themselves for search to inmate of the House which is mandatory as per the procedure. The above pre-requisite is an essential safeguard of the search to avoid any kind of planting of materials by unscrupulous investigators. Search party entering into my house where I have 4 bed rooms, living room, dining hall, kitchen, Pooja room, multiple toilets etc., it was impossible for any human being that too a lady to monitor such search. Infact, the Hon'ble Supreme Court of India in various pronouncements has defined the need of the search parties exhibiting fairness in conduct. This search party did not exhibit any of the basic decency and legality expected of them and rather searched my house in a brazen fashion and planted the material and also prepared search mahazar which was incorrect documents prepared by public servants in the presence of my wife and another relative of mine ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A perusal at the complaint would in unmistakable terms indicate that what the complainant ultimately wanted is, the diary that was seized as according to the complainant, the Department would be using the diary for development of certain incriminating investigation. The FIR is registered on the basis of the complaint in Crime No.52 of 2017 for the aforesaid offences. The FIR is against unknown persons and unknown Government officials. The complaint in the FIR is, seizure of certain documents at the time of search. Pursuant to the said complaint, the 3rd respondent/Police issued a Police Notice on 13-04-2017 under Section 91 of the Cr.P.C. Section 91 of the Cr.P.C. reads as follows: 91. Summons to produce document or other thing:--(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners during search and seizure. Since the communication referred to the FIR in Crime No.52 of 2017 for the aforesaid offences, the petitioners immediately replied seeking a copy of the FIR and thereafter, have filed this writ petition challenging the aforesaid action. 15. Section 293 of the Act reads as follows: 293. Bar of suits in civil courts:--No suit shall be brought in any civil court to set aside or modify any proceeding taken or order made under this Act, and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under this Act Section 293 of the Act, mandates that no suit shall be brought in any civil Court to set aside or modify any proceeding taken or order made under the Act and no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for any act done in good faith under the Act. The bar that operates under Section 293 of the Act, is twofold i.e., no proceedings shall be instituted before a civil Court and no prosecution shall lie against the government or any officer of the Government for anyth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.06.2017, which again discloses offences punishable as aforesaid in Crime No.52 of 2017. Therefore, what the Police want to investigate is the act of search and seizure done by the petitioners, communication and police notice that are sent to the petitioners. Therefore, it cannot be urged by the learned senior counsel that the FIR names nobody and the writ petition would not be maintainable. This submission deserves to be rejected and is rejected. 19. The purport of Section 293 of the Act, is considered by the Apex Court in the case of CIT v. PARMESHWARI DEVI SULTANIA 1998 3 SCC 481, wherein the Apex Court was considering whether a civil suit would be maintainable against Income-Tax officials, who had performed their acts under Section 132 of the Act, with regard to search and seizure. The Apex Court has held as follows: Commissioner of Income Tax, Bhubaneswar and Union of India, Ministry of Finance have filed this appeal against the judgment dated 24-10-1994 of the Orissa High Court which the High Court dismissed their revision and affirmed the order of the subordinate court rejecting the plea of the Revenue that a suit for partition filed by the first respondent was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the gold ornaments in question did not belong to Babulal. It was, therefore, not necessary for him to issue any notice under sub-section (7) of Section 132 of the Act to the plaintiff. In any case, the plaintiff was well aware of the proceedings before the Income Tax Officer and she could have also filed objection to the order made by the Income Tax Officer under Section 132(5) of the Act to the Chief Commissioner or Commissioner under sub-section (11) thereof which remedy she did not avail. Considering the whole gravamen of the plaintiff in the suit and the law on the subject, we are of the opinion that the Subordinate Judge and the High Court were not correct in rejecting the contention of the Revenue and holding that the suit was not barred under Section 293 of the Act. (emphasis supplied) The plea that was before the Apex Court was, whether the suit for partition filed by the 1st respondent therein, was maintainable in view of the bar under Section 293 of the Act arraigning Income-Tax officials as defendants. The Apex Court has clearly held that the trial Court and the High Court were not correct in rejecting the contention of the revenue and holding that the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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