UNION OF INDIA Vs M/S. AGARWAL IRON INDUSTRIES
Bench: DIPAK MISRA,UDAY UMESH LALIT
Case number: C.A. No.-007499-007499 / 2004
Diary number: 6013 / 2004
Advocates: B. V. BALARAM DAS Vs
ASHOK KUMAR SINGH
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7499 OF 2004
Union of India & Ors. ... Appellants
Versus
M/s. Agarwal Iron Industries ... Respondent
WITH
CIVIL APPEAL NO. 7502 OF 2004
J U D G M E N T
Dipak Misra, J.
In these appeals the assail is to the legal tenability of
the order dated 3.9.2003 passed by the Division Bench of
the High Court of Judicature at Allahabad in Civil Writ
Petition No. 275 of 2000 whereby the High Court has
quashed the search and seizure conducted on 16.2.2000 in
the factory premises of the 1st respondent.
2. Filtering the unnecessary details, the facts that
constitute the filament of the controversy is that the 1st
Page 2
respondent is engaged in the manufacture of C.I. pipes,
fittings and manholes and has obtained the licence under
the Central Excise Act. The factory in question has been
filing income-tax returns under the Income Tax Act, 1961
(for brevity ‘the Act’). On 16.2.2000 when the sole
proprietor of the factory Shri Om Prakash Agarwal was
absent, the officer of the Income Tax Department
conducted a search both at the residential as well as the
business premises. During the search of the residential
premises, son of the sole proprietor was informed by the
Income Tax Officer that the search operations were also
being conducted at the factory premises. Despite such
information he was not allowed to leave the house.
Assailing the search and the seizure, the 1st respondent
preferred a writ petition before the High Court and
contended therein that there was no information in
possession of the officer which could have persuaded any
reasonable person to form an opinion about the existence
of undisclosed assets of the writ-petitioner. It is further
urged that the warrant of authorization was issued
mechanically, arbitrarily and there was total non-
2
Page 3
application of mind and moreover there was no formation
of opinion about the existence of undisclosed assets as
contemplated under Section 132(1) of the Act. On this
foundation, the search and seizure were sought to be
quashed.
3. A counter affidavit was filed by the revenue
asseverating that there was no illegality in the initiation of
the seizure and it had been conducted in accordance with
law and the revenue had enough material against the 1st
respondent herein for the assessee had suppressed the
vital information pertaining to production and sale and the
same was also evidenced during the search operation. It
was contended that the productions declared by the 1st
respondent in the official record was not even 1/5th of the
actual production revealed by the seized documents.
4. It is interesting to note that the High Court by its
order dated 29.3.2000 appointed an Advocate
Commissioner to prepare an inventory of the goods in
question in respect of which the restraint order was passed.
The said Advocate Commissioner had submitted a report
which was taken on record. The High Court placed reliance
3
Page 4
on decisions in Commissioner of Income-Tax v.
Vindhya Metal Corporation1, Dr. N.L. Tahiliani v.
Commissioner of Income Tax2, L.R. Gupta v. Union of
India v. Union of India3 and Ajit Jain v. Union of India4
and extensively quoting from Dr. Tahiliani’s case came to
hold as follows:-
“At this stage it is relevant to refer to Para 40 of the writ petition, which is quoted below:
“40. That in the facts and circumstances the Petitioner bonafidely believes that there was no information in possession of the officer issuing the warrant of authorization for search which could lead any reasonable person to form an opinion about existence of undisclosed assets with the Petitioner. The warrant of authorization, even if assumed that there was any, was issued mechanically arbitrarily and without application of mind and without forming the opinion about existence of undisclosed assets, as contemplated by Sub-Section (1) of Section 132.”
The reply of the said paragraph has been given by the Respondents in Para 33 of the counter affidavit, which reads as under:
“33. That in reply to Paragraph 40 of the writ petition, it is denied that the warrant of authorization was issued
1 (1997) 5 SCC 321 2 (1988) 170 ITR 592 (Allahabad) 3 (1992) 194 ITR 32 (Delhi) 4 (2000) 242 ITR 302 (Delhi)
4
Page 5
mechanically, arbitrarily and without application of mind.”
From the aforesaid reply it is clear that there is no specific denial of the averments made in Para 40 of the writ petition. Order 8 Rule 5 of the Code of Civil Procedure provides that every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except against the person under disability. In view of this provision in absence of a specific denial in the counter affidavit to the assertions made in the writ petition, it can safely be concluded that there is no denial of the facts stated in the writ petition. We are aware that the explanation to Section 141 of the Code of Civil Procedure provides that the provisions of Code of Civil Procedure shall not be applicable to the writ petition. However, the principles as stated in the Code of Civil Procedure are also applicable to the writ proceedings.”
5. We have no hesitation in opining that the reasons
ascribed in the aforesaid paragraphs, leaves us absolutely
unimpressed. We really cannot comprehend how an
Advocate Commissioner was appointed to take inventory of
the goods in respect of which the restraint order was
passed by the revenue under the Act. That apart, it is
difficult to appreciate how the denial in the counter
affidavit filed by the revenue could be treated as an
admission by implication to come to a conclusion that no
5
Page 6
reason was ascribed for search and seizure and, therefore,
action taken under Section 132 of the Act was illegal. The
relevant confidential file, if required and necessary could
have been called for and examined. Revenue in the
counter affidavit was not required to elucidate and
reproduce the information and details that formed the
foundation.
6. In this context, we may profitably refer to the
decision in Pooran Mal V. The Director of Inspection
(Investigation), New Delhi and others5, wherein the
Constitution Bench, while upholding the constitutional
validity of Section 132 of the Act opined thus:
“Search and seizure are not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. The process is widely recognized in all civilized countries. Our own Criminal Law accepted its necessity and usefulness in Sections 96 to 103 and Section 165 of the Criminal Procedure Code. In M.P. Sharma v. Satish Chandra6 the challenge to the power of issuing a search warrant under Section 96(1) as violative of Article 19(1)(f) was repelled on the ground that a power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. As pointed out in that case a search by itself is not a
5 (1974) 1 SCC 345 6 AIR 1954 SC 300
6
Page 7
restriction on the right to hold and enjoy property though a seizure is a restriction on the right of possession and enjoyment of the property seized. That, however, is only temporary and for the limited purpose of investigation”.
Thereafter, proceeding with the ratiocination, the
Court ruled that the provision has inbuilt spheres.
Proceeding to enumerate the spheres and other
consequent facets, the Court ruled:
“In the first place, it must be noted that the power to order search and seizure is vested in the highest officers of the department. Secondly, the exercise of this power can only follow a reasonable belief entertained by such officer that any of the three conditions mentioned in Section 132(1)(a),(b) and (c) exists. In this connection it may be further pointed out that under sub-rule (2) of Rule 112, the Director of Inspection or the Commissioner, as the case may be, has to record his reasons before the authorisation is issued to the officers mentioned in sub- section (1). Thirdly, the authorisation for the search cannot be in favour of any officer below the rank of an Income Tax Officer. Fourthly, the authorisation is for specific purposes enumerated in (i) to (v) in sub- section (1) all of which are strictly limited to the object of the search. Fifthly when money, bullion, etc. is seized the Income Tax Officer is to make a summary enquiry with a view to determine how much of what is seized will be retained by him to cover the estimated tax liability and how much will have to be returned forthwith. The object of the enquiry
7
Page 8
under sub-section (5) is to reduce the inconvenience to the assessee as much as possible so that within a reasonable time what is estimated due to the Government may be retained and what should be returned to the assessee may be immediately returned to him. Even with regard to the books of account and documents seized, their return is guaranteed after a reasonable time. In the meantime the person from whose custody they are seized is permitted to make copies and take extracts. Sixthly, where money, bullion, etc. is seized, it can also be immediately returned to the person concerned after he makes appropriate provision for the payment of the estimated tax dues under sub-section (5) and lastly, and this is most important, the provisions of the Criminal Procedure Code relating to search and seizure apply, as far as they may be, to all searches and seizures under Section 132. Rule 112 provides for the actual search and seizure being made after observing normal decencies of behaviour. The person in charge of the premises searched is immediately given a copy of the list of articles seized. One copy is forwarded to the authorising officer. Provision for the safe custody of the articles after seizure is also made in Rule 112. In our opinion, the safeguards are adequate to render the provisions of search and seizure as less onerous and restrictive as is possible under the circumstances.
7. In District Registrar and Collector, Hyderabad
and Another V. Canara Bank and Others7, while
referring to Section 132 of the Act, it has been ruled that:
7 (2005) 1 SCC 496
8
Page 9
“There are safeguards. Section 132 uses the words “in consequence of information in his possession, has reason to believe”. (emphasis supplied) Section 132(1-A) uses the words “in consequence of information in his possession, has reason to suspect”. Section 132(13) says that the provisions of the Code of Criminal Procedure, relating to searches and seizure shall apply, so far as may be, to searches and seizures under Sections 132(1) and 132(1-A). There are also Rules made under Section 132(14). Likewise Section 132-A(1) uses the words “in consequence of information in his possession, has reason to believe”. (emphasis supplied) Section 133 which deals with the power to call for information from banks and others uses the words “for the purposes of this Act” and Section 133(6) permits a requisition to be sent to a bank or its officer”.
8. The provision contained in Section 132(1) of the Act
enables the competent authority to direct for issue of
search and seizure on the basis of formation of an opinion
which a reasonable and prudent man would form for
arriving at a conclusion to issue a warrant. It is done by
way of an interim measure. The search and seizure is not
confiscation. The articles that are seized are the subject of
enquiry by the competent authority after affording an
opportunity of being heard to the person whose custody it
has been seized. The terms used are ‘reason to believe’.
9
Page 10
Whether the competent authority had formed the opinion
on the basis of any acceptable material or not, as is clear
as crystal, the High Court has not even remotely tried to
see the reasons. Reasons, needless to say, can be
recorded on the file and the Court can scrutinize the file
and find out whether the authority has appropriately
recorded the reasons for forming of an opinion that there
are reasons to believe to conduct search and seizure. As is
evincible, the High Court has totally misdirected itself in
quashing the search and seizure on the basis of the
principles of non-traverse.
9. In our considered opinion, the High Court would
have been well advised to peruse the file to see whether
reasons have been recorded or not and whether the same
meet the requirement of law.
10. In view of our foregoing analysis, we allow the
appeals, set aside the impugned order passed by the High
Court and remand the matter to the High Court for fresh
disposal in accordance with law. The revenue shall produce
the file before the High Court, whereafter the High Court
10
Page 11
shall proceed to adjudicate the lis. There shall be no order
as to costs.
.............................J. [Dipak Misra]
..............................J. [Uday Umesh Lalit] New Delhi; November 12, 2014
11