9911796707
TMI Blog2022 (3) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings for the period 01-04-1995 to 19-12-2001 were launched against the petitioner as per section 158BC of the Act. On 31-12-2003, the assessment proceedings were completed reckoning undisclosed income in the hands of the assessee. On appeal, the quantum of undisclosed income was reduced, thereby allowing the appeal in part. The second appeal preferred by the revenue ended in dismissal, while that filed by the assessee was partly allowed. On appeal to this Court, in I.T.A. No.819 of 2009 and I.T.A. No. 1326 of 2009, this Court directed the assessing officer to refix the undisclosed income at 25% of the originally assessed figure. Petitioner has preferred a Special Leave Petition before the Supreme Court and it is still pending. 3. In the meantime, petitioner alleges that though no order has been recorded by any of the officers as contemplated under section 132(8) of the Act, still, the respondents are retaining the seized documents of title for periods beyond 30 days without authority of law. Despite repeated requests of the petitioner and even after several representations, no response could be elicited from the respondents and the documents of title continued to remain with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 132(8) of the Act, the documents seized during a search and seizure can be retained by the Department only for a period beyond 30 days from the date of order of assessment under section 158BC of the Act, unless, the reasons for retaining the same are recorded in writing and the approval of any of the officers mentioned in the sub-section is obtained. According to the learned counsel, since the order of assessment is dated 31-12-2003, the seized documents could not have been retained by the respondents beyond 31-01-2004. The learned counsel further pointed out that, the authorisation to retain documents cannot under any circumstances continue beyond 30 days after all proceedings under the Act are completed as specified in the proviso to section 138(8) of the Act. 9. According to Adv.Uthara Asokan, none of the orders permitting retention of the documents beyond the period specified in section 132(8) of the Act were ever communicated to the petitioner and further, that, even if Ext.P13 is assumed to be issued, the same was beyond the jurisdiction of the Principal Commissioner of Income Tax. The learned counsel contended that the impugned order Ext.P13 does not even bear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Act, 1922 (11 of 1922) or this Act in respect of the years for which the books of account or other documents are relevant are completed." 12. The above statutory provision mandates that the books of accounts or other documents seized during a search and seizure cannot be retained beyond 30 days from the date of the order of assessment under section 153A or section 158BC of the Act, without recording reasons in writing by the officers specified therein. The statute further mandates that retention of the documents shall not be authorised beyond 30 days after proceedings under the Income Tax Act, 1961 are completed. 13. Title deeds are the choicest of possessions of an owner since ownership of property and its absolute dominion are reflected in the possession of such deeds. When the owner is denuded of its choicest possession, under the facade of statutory prescriptions, such provisions must scrupulously be adhered to. 14. Section 158BC of the Act provides for the procedure for block assessment. In the instant case, admittedly the order under section 158BC was issued on 31-12-2003. Therefore, the respondents are bound to adhere to the provisions strictly and substantiate that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the enforcement of his right to have such books and documents returned to him being kept ignorant about the factum of fulfillment of either of the conditions, it was obligatory upon the revenue to communicate the Commissioner's approval as also the recorded reasons to the person concerned. It was further held that in the absence of such communication, the order granting approval will not become effective. 18. A learned Single Judge of this Court also had, in the decision in Joshi P. Mathew v. Deputy Commissioner of Income Tax, Ernakulam and Another (2013 (1) KHC 288), held that non-communication of the orders recording the reasons and the grant of approval to the assessee renders the retention of the documents beyond 30 days of completion of the assessment as illegal. 19. Thus, there was a bounden duty upon the Department to establish that the orders recording the reasons and grant of approval were communicated to the assessee. No such communication has been produced for consideration of this Court. Except for vague averments, that too, in the form of a statement instead of an affidavit, that orders were communicated to the assessee, nothing has been produced to convincingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
