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Late Ananta N. Naik, Through Lr vs Deputy Commissioner Of Income Tax on 7 June, 1999 cites

Kirloskar Investments & Finance Ltd. vs Assistant Commissioner Of Income-Tax on 4 March, 1998

The search comes to an end when search party leaves premises after carrying with them seized material and thus authorisation for search is fully implemented upon and execution is complete. For this proposition, we are supported by the decision of the Bangalore Bench in the case of Kirloskar Investments & Finance Ltd. vs. Asstt. CIT (supra). The cupboard in which 45 kgs of silver articles were kept was sealed by making an order under s. 132(3) of the Act. It is obvious that the authorised officer was very much aware of the contents of the cupboard and the nature of the articles in view of the inventory made of such silver as in p. 308 of the compilation (Vol. I). He had also come to the conclusion that the said 45 kgs of silver articles need not be seized. There was also no practical impediment to seizure of the said 45 kgs of silver if it was considered by the authorised officer as necessary. The contention of the learned Departmental Representative that it was not practical/wise to seize huge quantity of silver at odd hours (2.30 a.m.) is untenable, because on the same odd hours the search party seized and removed from the premises of the assessee 5,729 gms. of gold ornaments, cash of Rs. 1,69,000 and books of accounts weighing nearly 500 kgs. On 26th October, 1996, 6 kgs of silver articles in the said cupboard were released, a Panchnama made and a further order under s. 132(3) passed with respect to the said sealed cupboard and the seal was placed again. The proceedings on 26th October, 1996, cannot be considered as part of execution of the search proceedings which concluded on 20th October, 1996. By stating in the Panchnama that the search is temporarily suspended, the authorised officer cannot keep the search proceedings in operation continuously by passing restraint orders under s. 132(3). After 20th October, 1996, the authorised officer had nothing to search or seize and could not have lawfully conducted any search. Even a fresh warrant under s. 132(1) could not have been issued thereafter, since the basic requirements for issue of such a warrant ceased to exist after 20th October, 1996. Without such a warrant, any ingress into the search premises itself is unlawful. The life terms of the search warrant issued on 7th October, 1996, executed between 16th October, 1996, and 20th October, 1996, expired on 20th October, 1996. The final revocation of the order under s. 132(3) on 13th December, 1996, is wholly irrelevant for purposes of determining the limitation under s. 158BE. All that was done on this day was removal of the seal on the cupboard containing silver articles and revocation of 132(3) order, by Shri Ashish Abrol. The Asstt. CIT, Margaon, who was not one of the authorised officer to conduct any search. We have produced the affidavit of Mr. Ashish Abrol on p. 12 of the this order. As stated on p. 13 of our order above, on 5th May, 1999, Shri Ashish Abrol appeared before us and confirmed that he was directed to go to assessee's house and lift the prohibitory order and then put deemed seizure, and that this was a limited role and he did the same. It is not understood how Mr. Ashish Abrol, who was not authorised officer was first directed to lift the prohibitory order and then put "deemed seizure". In fact, neither any deemed seizure was called for as no new information came in possession of the authorised officer nor any deemed seizure was put. In fact, after verification of the contents, the key was handed over to the assessee. If there was a seizure, how could the key of the cupboard could be given to the assessee. In view of the affidavit of Shri Ashish Abrol and his statement recorded before us, the averment of Mr. M. L. Karmarkar in para (8) of his affidavit that "subsequently on 13th December, 1996, the said silver articles were placed under deemed seizure under the second proviso to s. 132(1)" is patently wrong and without any basis. We have seen the original of the so-called Panchnama drawn on 13th December, 1996, by Shri Ashish Abrol (photo copy of the same has been placed on record). A perusal of this Panchnama revealed that against column (vii) of cl. 5(a), it has been mentioned "other valuables or articles deemed to have been seized under second proviso to s. 132(1) of the IT Act as per Annexure 'N' (1 sheet)". On perusal of Annexure 'N' (one sheet), it is noted that under particulars of valuable articles or things, the following notings have been made :
Income Tax Appellate Tribunal - Bangalore Cites 53 - Cited by 22 - Full Document

I. Devarajan And Ors. vs Tamil Nadu Farmers Service ... on 23 January, 1979

(ii) I. Devarajan vs. Tamil Nadu Farmers Service Co-operative Federation (1981) 131 ITR 506 (Mad) In the case of seized assets, there is a specific provision made for seeing that the assets are not retained beyond the period of 90 days after seizure. However, in case of sub-s. (3) there is no such time-limit. But the non-specification of time-limit cannot be construed as showing that the authorised officer can subject the assets to attachment for an indefinite period of time. It is not possible to read the time-limit in sub-s. (5) into sub-s. (3) as Parliament has not imposed any such time-limit with respect to sub-s. (3) for good and valid reasons. But the provisions of sub-s. (3) cannot be utilised so as to continue the attachment indefinitely.
Madras High Court Cites 58 - Cited by 41 - Full Document

B.K. Nowlakha And Others vs Union Of India And Others on 19 August, 1991

(iii) B. K. Nowlakha vs. Union of India (1991) 192 ITR 436 (Del) The Delhi High Court held that s. 132(3) could be resorted to only if there was any practical difficulty in seizing the item which was liable to be seized. The Delhi High Court furthermore stated in that connection that if there were no practical difficulties then the authorised officer has the jurisdiction and duty to seize the books of account, other documents. money, bullion, valuable articles, etc. found as a result of the search if no explanation was coming forward in respect thereof. The Delhi High Court furthermore commended in that case that the power under s. 132(3) cannot be so exercised as to circumvent the provision of s. 132(1) r/w s. 132(5).
Delhi High Court Cites 6 - Cited by 24 - B N Kirpal - Full Document
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