Full Judgment Text
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PETITIONER:
COMMISSIONER OF INCOME TAX, HARYANA,HIMACHAL PRADESH & DELHI
Vs.
RESPONDENT:
TARSEM KUMAR & ANR.
DATE OF JUDGMENT17/07/1986
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
PATHAK, R.S.
CITATION:
1986 AIR 1477 1986 SCR (3) 294
1986 SCC (3) 489 JT 1986 220
1986 SCALE (2)47
ACT:
Search and Seizure-seizure amount in custody of customs
authorities-Court directing the customs authorities to
return the amount to the respondent-Whether the said amount
could be seized by the Income-tax authorities under section
132 of the Income tax Act, 1961 read with Rule 112(II) of
the Income Tax Act, 1962 from the customs authorities-
Whether it militates the provisions of section 110(II) of
the Customs Act, 1962-Words and phrases-Meaning of "Search",
"Seizure" and "Possession", explained.
HEADNOTE:
On 23rd August, 1970, when the respondent was
travelling by car, alleged to be belonging to his brother,
from Ambala to Batala, the Customs officer intercepted him
near the Beas river and forcibly taken along with the
driver, Gurunam Singh to the Customs House at Amritsar. The
respondent along with the driver was searched and the
customs authorities took into possession Rs.33,500 in Indian
currency, 10 gold sovereigns and the car in which he
travelled. The Customs authorities, thereupon initiated
departmental proceedings under section 110(II) of the
Customs Act, 1962 and extended the period of issuing of the
show-cause notice under section 124 of the Customs Act,
1962. These proceedings were quashed by an order of the
Learned Single Judge of the High Court of Punjab on 24th
April, 1372 following an earlier decision of that Court.
After the said judgment, the respondent approached the
customs authorities for the return of the money and the car
on 11.5.1972. The gold sovereigns were not demanded because
ac cording to the respondent these did not belong to him. He
had been directed to come on the following day to get back
the currency notes and the car. On the next day, however the
Income Tax officer served the warrant of authorisation dated
10th May, 1972 issued under section 132 of the Income Tax
Act, read with Rule 112(II) of the Rules on the respondent
as well as on the customs department with the result the
cash was taken possession of by the Income Tax authorities.
Thereafter
295
the respondent filed another writ petition under Article 226
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and 227 of A the Constitution. The customs authorities also
filed an appeal against the decision of the Single Judge
dated 24th April, 1972. The writ petition and the appeal
were heard together by a Division Bench of the Punjab High
Court. Dismissing the appeal and allowing the writ petition
the High Court held that where the amount was seized by the
customs authorities and the seizure was held illegal by the
Court customs authorities were bound to return the money to
the person entitled to it under the relevant provisions of
section 110 of the Customs Act, 1962; that the Income Tax
authorities could not seize such an amount from the customs
authorities under section 132 of the Income Tax Act and
authorisation of search and seizure was illegal if issued in
the name of the person who did not have possession of the
Article in respect of which it was issued. Hence this appeal
by the revenue by special leave.
Dismissing the appeal, the Court,
^
HELD: 1.1 on a construction of section 132 of Income
Tax Act, 1961 and the context, in which the words "search",
"possession", and "seizure" have been used in the said
section and the rules indicate that there cannot be any
order in respect of goods or moneys or papers which are in
the custody of another department under legal authority
where the location of the property was known to the
Government one government department could not search
another department and seize them. [301E-F]
1.2 Sub-Section (3) of section 132 of the Act uses the
expression "who is in immediate possession or control
thereof". "Possession" is a word of ambiguous meaning and
its legal senses do not always coincide with the popular
sense. Possession again may not always be synonymous with
manual detention or physical retention of the goods or
moneys. When the physical custody of the moneys and goods
were with the customs authorities, and that too by a legal
sanction and authority to have that custody, it cannot be
said that possession as used in section 132 of the Act was
still with the respondent Tarsem Kumar. [30 1F-H]
1.3 Reading the expressions "retention" and "custody"
in some of the sub-sections of section 132 in the context
these have been used, it cannot be said, that where an
authority or a person has retention and custody with the
legal sanction behind it, it was not the intention of the
legislature to say that he was not in possession as
contemplated in section 132 of the Income Tax Act, 1961.
[302A-B]
296
The Commissioner of Income Tax v. Ramesh Chander &
Ors., 93 ITR 450 PunJab; Tarsem Kumar & Anr. v. The
Commissioner of Income Tax, Haryana, Himachal Pradesh &
Delhi & ors., 94 ITR 567; Laxmipat Chororia v. K.K. Ganguli
JUDGMENT:
Motilal and ors. v. Preventive Intelligence officer,
Central Excise and Customs, Agra & Ors., 80 ITR 418
Allahabad, distinguished and partly overruled.
Noor Mohd. Rahimatulla Gillani v. The Commissioner of
Income-tax Vidrabha and Marathwada, Nagpurand Anr., [1976]
Taxation Law Reports, 688, Bombay; Pannalal v. Income Tax
officer, Ward. Chhindwara and ors., 93 ITR p. 480 Madhya
Pradesh; Gulab and Company and Anr. v. Superintendent of
Central Excise (Preventive) Trichy, and ors., 98 ITR 581
Madras; Assainar and Anr. v. Income-tax officer, Calicut and
ors., 101 ITR 854 Kerala, overruled.
1.4 It is true that in the instant case, the title was
not transferred to the Customs authorities by seizure under
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the Customs Act. But in the context, in which the
expressions "possession" and "seizure" have been used, it
cannot be considered to mean that the possession was where
the legal title was, physical possession was with the
Customs authorities, title was with the respondent herein.
In this context, the physical possession having regard to
the language used is relevant and material. Physical
possession was with the Customs authorities when the seizure
authorisation was passed. Therefore, where the exact
location of the property was known and there was no need to
seize the money, the Income tax department could direct
handing over the money to the Income-tax authorities or take
steps for such direction through appropriate authorities and
not by resort to section 132 of the Income Tax Act. This is
so because if the location was certain then there was
nothing to search or look for. [304G-H; 305A-B]
1.5 The lacuna in the law having been subsequently
filled in by introducing section 132A of the Act with effect
from October, 1975, it will be open to the income tax
authorities to approach the appropriate authorities to
realise any amount of money or to recover any books of
account or documents in accordance with the law. [307D-E]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1666 (NT)
of 1974.
297
From the judgment and order dated 26th November, 1973
of the A Punjab & Haryana High Court in Civil Writ No. 3355
of 1972.
S.C. Manchanda, M.B. Rai and Ms. A. Subhashini for the
Appellants.
Harbans Singh for the Respondents.
The Judgment of the Court was delivered by
SABYASACHI MIJKHARJI, J. This appeal is by special
leave from a judgment and order of Punjab and Haryana High
Court in an application under article 226 of the
Constitution. The judgment in question is reported in 94
I.T.R. 567. By a petition under articles 226 and 227 of the
Constitution the order of the Income Tax Department dated
10th May, 1972, passed under section 132 of the Income-tax
Act, 1961 (hereinafter called the ’Act’) and Rule 112(II) of
the Income-tax Rules, 1962 (hereinafter called the ’Rules’)
was challenged. The division bench by the impugned judgment
allowed the petition, quashed the search and seizure
warrants and directed the Income-Tax Department to return
the moneys to the Customs authorities and gave certain
consequential directions. In order to appreciate the points
involved, it is necessary to refer to certain facts as found
by the High Court. On 23rd August, 1970 the petitioner
before the High Court, who is the respondent here, was
travelling by car, alleged to be belonging to his brother
from Ambala to Batala. He was intercepted near the Beas
river by the Customs officer and was forcibly taken along
with the driver, Gurnam Singh, to the Customs House at
Amritsar. The said petitioner in that application was
searched along with his driver and the Customs authorities
took into possesion Rs.93,500 in Indian currency, 10 gold
sovereigns and the car. On the 24th August, 1970, the
petitioner was produced before a Duty Magistrate at Amritsar
and was granted bail. In the meantime, the Customs
department took proceedings under section 110(2) of the
Customs Act, 1962 and extended the period of issuing of the
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show cause notice under section 124 of the Customs Act,
1962. These proceedings were challenged in the High Court by
Writ Petition and the order of the Customs authority under
section 110(2) was quashed by an order of the learned single
judge of the High Court on 24th April, 1972. The appeal
against that decision was dismissed by the division bench
along with this petition by the High Court. After the said
judgment of the learned single judge, the respondent had
approached the Customs authorities for the return of H
298
the money and the car. The gold sovereigns were not demanded
be cause according to the said petitioner, these did not
belong to him. He had been directed to come on the following
day to get back the currency notes and the car. In the
meantime on 12th May, 1972 the Income-tax officer, had
served the warrant of authorisation dated 10th May, 1972
issued under section 132 of the Act and rule 112(II) of the
Rules on the respondent as well as on the Customs
department, with the result that only the cash was taken
possession of by the income tax authorities. Thereafter, the
respondent filed the petition under articles 226 and 227 of
the Constitution before the High Court in respect of which
the judgment impugned here was rendered.
It was submitted that the authorisation warrant was
illegal, be cause the money was not in his possession but
was in the possession of the Customs authorities. It was
secondly urged that the action taken by the Income-tax
authorities under section 132 of the Act militated the
provisions of section 110(2) of the Customs Act. The High
Court felt that so far as the first contention was
concerned, it was concluded by the decision of the said High
Court in The Commissioner of Income-tax v. Ramesh Chander &
Ors., 93 I.T.R. 450 (Pb). The High Court relied on the
following observations at pages 478-479 of the report:
"I have come to the conclusion that the search and
seizure warrants issued under sub-section (1) of
section 132 of the Income-tax Act were illegal,
firstly, because the search and seizure warrants
were issued in the name of Ramesh Chander and he
was in fact not in possession of either the
currency notes or account books, and secondly, the
income tax authorities could not seize the
currency notes and account books from the police
officer who is duty bound to proceed with the case
property in accordance with the pro visions of the
Code of Criminal Procedure."
The High Court held that where the amount was seized by
the Customs authorities and the seizure was held illegal by
the Court, Customs authorities were bound to return the
money to the person entitled to it under the relevant
provisions of section 110 of the Customs Act, 1962. The
Income-tax authorities could not seize such an amount from
the Customs authorities under section 132 of the Act.
Moreover, the authorisation was illegal if issued in the
name of the person who did not have possession of the
article, in respect of which it was issued. The High Court
further held that in the facts and circum-
299
stances of the case the order under section 132 of the Act
was not Justified.Therefore, the High Court held that the
search and seizure warrants were liable to be quashed and
the money returned to the customs department. The judgment
of the High Court is reported in 94 I.T.R. 567. The validity
of the judgment is impugned in this appeal.
It is necessary in order to appreciate the contentions
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urged in this case to refer to the relevant provisions of
section 132 of the Act. Sub-section ( I) of section 132
provides as follows:
"Search and Seizure-(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
(a) any person to whom a summons under sub
section (1) of section 37 of the Indian
Income-tax Act, 1922 (XI of 1922), or under
sub-section (1) of section 131 of this Act,
or a notice under sub section (4) of section
22 of the Indian Income Tax Act, 1922, or
under sub-section (1) of section 112 of this
Act was issued to produce or cause to be
produced any books of account or other
documents has omitted or failed to produce,
or cause to be produced, such books of
account or other documents as required by
such summons or notice, or
(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 Indian
Income-tax Act, 1922 (XI 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 (XI of 1922), or this
Act H
300
(hereinafter in this section referred to as
the undisclosed income or property),
[then,-
(A) the Director of Inspection or the
Commissioner, as the case may be, may
authorise any Deputy Director of Inspection,
Inspecting Assistant Commissioner, Assistant
Director of Inspection or Income-tax officer,
or
(B) such Deputy Director of Inspection or
Inspecting Assistant Commissioner, as the
case may be, may authorise any Assistant
Director of Inspection or Income-tax officer,
(the officer so authorised in all cases being
hereinafter referred to as the authorised officer to -)
(i) enter and search any [building, place,
vessel, vehicle or aircraft] where he has
reason to suspect that such books of account,
other documents, money, bullion, jewellery or
other valuable article or thing are kept;
(ii) break open the lock of any door, box, locker,
safe, almirah or other receptacle for
exercising the powers conferred by clause (i)
where the keys thereof are not available;
(iia)search any person who has got out of, or is
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about to get into, or is in, the building,
place, vessel, vehicle or aircraft, if the
authorised officer 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;]
(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;
(iv) place mark of identification on any books of
ac count or other documents or make or cause
to be made extracts or copies therefrom;
301
(v) make a note or an inventory of any such money,
bullion, jewellery or other valuable article or
thing; "
The only other sub-section to which reference need be
made is sub-section (3) which is as follows:- B
"The authorised officer may, where it is not
practicable to seize any such books of account,
other document, money bullion, jewellery or other
valuable article or thing, serve an order on the
owner or the person who is in immediate possession
or control thereof that he shall not remove, part
with or otherwise deal with it except with the
previous permission of such officer and such
officer may take such steps as may be necessary
for ensuring compliance with this sub-section. "
It is not necessary to refer to the other provisions
for the present purpose. But the procedure indicated that if
necessary, force may be used for search seizure. Rule 112 of
the said Rules provides the manner in which such search and
seizure should be conducted.
On a construction of the section; and the context, in
which the words "search", "possession" and "seizure" have
been used in the said section and the rules indicate that
there cannot be any order in respect of goods or moneys or
papers which are in the custody of another department under
legal authority. It is important to note that the expression
"possession" has not been defined in the Act.
It may be noted that sub-section (3) of section 132 of
the Act uses the expression "who is in immediate possession
or control thereof". "Possession" is a word of ambiguous
meaning and its legal senses do not always coincide with the
popular sense. Reference may be made to Halsbury’s Laws of
England, Vol. 35, 4th Edn. articles 1111-11267 pages 617-
627. Possession again may not always be synonymous with
manual detention or physical retention of the goods or
moneys. It appears to us that when the physical custody of
the moneys and goods were with the customs authorities, and
that too by a legal sanction and authority to have that
custody, it would be improper to contend that possession as
used in section 132 of the Act was still with the
respondent. The use of the expression "immediate possession"
in sub-section
302
(3) of section 132 does not detract from the meaning of
possession in the popular sense. This construction is not
unmindful of the fact that in some of the sub-sections of
section 132 the expressions "retention" and "custody" have
been used, but reading these expressions in the context
these have been used, it cannot be said that where an
authority or a person has retention and custody with the
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legal sanction behind it, it was not the intention of the
legislature to say that he was not in possession as
contemplated in section 132 of the Income-tax Act, 1961.
In this connection, reference may be made to Burrows Words &
Phrases Judicial Dictionary, 4th Edn. page 306. All these
aspects were discussed by the Calcutta High Court (by one of
us, Sabyasachi Mukharji, J singly) in Laxmipat Chororia v.
K.K. Ganguli & ors., 82 l.T.R. 306 (Cal). This decision was
affirmed on appeal and the bench decision of the said Court
is reported in 93 I.T’R. at p. 489. This aspect of the
matter has been clearly dealt with by a judgment of the
division bench of the Allahabad High Court in Motilal and
ors. v. Preventive Intelligence officer, Central Excise and
Customs, Agra and others, 80 I.T.R. 418. (Allah.) where the
judgment was delivered by one of us (R.S. Pathak, J.). There
the Court held that the power conferred under section 132(1)
of the Act was contemplated in relation to those cases where
the precise location of the article or thing was not known
to the Income-tax department and therefore, a search was
necessary for it, and where it would not be ordinarily
yielded over by the person having possession of it. The view
that section 132(3) of the Act would include a case where
the location of the article or thing was known and where
ordinarily the person holding custody of it would readily
deliver it up to the Income-tax department was not correct,
it was so held by the division bench of the Allahabad High
Court.
It was further held that consequently goods in the
custody of the Assistant Collector of Customs and Central
Excise were not things which could be the subject of an
order under section 132(3) of the Act. Pathak, J. spoke for
the division bench there at p. 422 of the report thus:
"In my opinion, the power conferred under section
132(1) is contemplated in relation to those cases
where the precise location of the article or thing
is not known to the income-tax department and,
therefore, a search must be made for it, and where
it will not be ordinarily yielded over by the
person having possession of it and, therefore it
is necessary to seize it. If it is only such
article or thing which
303
is contemplated by section 132(1) then it is such
article or A thing alone which can be the subject of an
order under section 132(3). I am unable to accept the
contention on behalf of the Income-tax department that
section 132(3) will include a case where the location of the
article or thing is known and where ordinarily the person
holding custody of it will readily deliver it up to the
Income-tax department. Such article or thing, I think,
requires neither search nor seizure. "
Mr. S.C. Manchanda, learned advocate for the revenue,
drew our attention to several decisions including the
decision in Noor Mohd. Rahimatulla Gillani, v. The
Commissioner of Income-tax Vidrabha and Marathwada, Nagpur
and another, 1976 Taxation Law Reports 688 (Bombay).
In that case, after referring to the views expressed by
the division bench of Allahabad High Court and division
bench of Punjab and Haryana High Court in the judgment under
appeal and the Calcutta High Court, as indicated before,
Chandurkar J. Of the Bombay High Court observed as follows:
"We are not inclined to accept the submission that
no valid authorisation to seize the amount Lying with the
Collector of Central Excise and Customs, Nagpur could have
been issued under Section 132(1). The relevant provision in
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the instant case is to be found in Section 132(1) (c) of the
Act and all that is required in order to issue an
authorisation under Section 132(1) is that either the
Director of Inspection or the Commissioner must have reason
to believe that 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 disclosed for the purposes of the Act or
the Income-tax Act of 1922. It is the character of money or
assets as undisclosed income or property and their
possession that gives jurisdiction to issue the authori-
risation. Merely because some authority has seized that
money or property, its character which is believed to be
that of undisclosed income or property does not change.
The seizure of the cash amount of Rs.3.05.530 by the
304
Central Excise Authorities in the instant case no
doubt transferred physical possession of that
amount from the petitioner to the Central Excise
Department, but the legal ownership of that money
still continued to be with the petitioner. As long
as that amount was not confiscated or did not
become the property of the Central Excise Depart-
ment by virtue of an order passed under the
relevant provision of law if at all any order
could be so passed the property or the money did
not cease to be that of the petitioner. Though the
Collector of Central Excise and Customs was in
possession of the money, since its alleged
character of being undisclosed income or property
remained unattended the Collector satisfied the
description of "any person" being in possession of
undisclosed income or property though the property
represented the undisclosed income or property of
the petitioner himself. The words used in s.
132(1) (c) are "any person". Such a person may be
a person who is in possession of his own
undisclosed income or property or a person who is
in possession of somebody else’s undisclosed
income or property. The fact that the Collector of
Central Excise and Customs happened to be an
officer of the Government of India was not
relevant because the Income-tax Authorities and
the Central Excise Authorities were functioning
under two separate enactments which created two
different liabilities the enforcement of which was
entrusted to independent authorities under the
law. Disagreeing, therefore, with the authorities
relied upon by the 3 petitioner, we must hold that
the authorisation issued even against the
Collector of Central Excise and Customs enabling
the Income-tax officer to seize that amount was a
valid authorisation. In any case, in the instant
case, a subsequent order under s. 132(3) was
already made and even by the order under s. 132(5)
that amount was directed to be released."
It is true that the title was not transferred to the
Customs authorities by seizure under the Customs Act. But in
the context. in which the expressions "possession" and
"seizure" have been used, it p cannot be considered to mean
that the possession was where the legal title was, physical
possession was with the Customs authorities, title Was with
the respondent herein. In this context, the physical posses-
305
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sion having regard to the language used is relevent and
material. Physical possession was with the Customs
authorities when the seizure authorisation was passed.
Therefore, where the exact location of the property was
known and there was no need to seize the money, the Income-
tax department could direct handing over the money to the
Income-tax authorities or take steps for such direction
through appropriate authorities. In that view of the matter
we are unable to sustain the view of Chandurkar, J. as the
learned Chief Justice then was of the Bombay High Court.
Mr. Manchanda also drew our attention to the case of
Pannalal v. Income-Tax officer, B-Ward, Chhindwara and ors.,
93 I.T.R. p.480 (M.P.) where the division bench of the
Madhya Pradesh High Court was of the view that an order
under section 132(3) could only be passed after an
authorisation for search and seizure had been made under
section 132(1) of the Act. The thing in respect of which the
order is made must be one regarding which the conditions
mentioned in clauses (a), (b) and (c) of section 132 are
satisfied. But there was nothing in the requirements of
section 132 to support the view that if the Commissioner has
definite knowledge that the books of account, documents,
money, bullion, etc., sought to be searched and seized are
in the possession of a particular person he cannot issue an
authorisation for search and seizure of the same. In our
opinion. it may be mentioned that if the location was
certain, then there was nothing to search or look for.
Madhya Pradesh High Court, however, observed that the
expression "has reason to believe" signified that the
Commissioner has reason to be satisfied that the things to
be searched are in the possession of a particular person.
The object of section 132 was according to the High Court,
not merely to get information of the undisclosed income but
also to seize the money, bullion, etc. representing the
undisclosed income and to retain. them for purposes
mentioned in section 132(5). Section 132(1)(C) of the Act
did not contain a condition either expressly or impliedly
that the thing to be seized should not be in the possession
of a person who may willingly part with his possession.
There is no obligation on any one, not even on Government
officers of other department, to deliver anything to G the
income-tax authorities except when the law requires them to
do so. The person authorised by the Commissioner could enter
and search any building, break open the lock of any door
etc. But that did not mean that in every case the person
authorised by the warrant would have to exercise all those
powers in making the search and seizing the thing, according
to the High Court. It was not necessary that an actual
306
search must precede an order under section 132(3) directing
a person not to part with articles in his possession.
Section 132(1)(c) did not contemplate that the person who
has not disclosed his income or property for the purposes of
the Income-tax Act should himself be in possession of money,
bullion, etc. representing such income. Clause (c) spoke of
"any person who is in possession" and it did not
specifically refer to possession by the person who had not
disclosed his income. All that the clause required was that
the money, bullion etc. should be such which represents
either wholly or partly income or property which had not
been disclosed for purposes of the Income-tax Act and such
money, bullion, etc. should be in the possession of a
person. This construction was supported by the use of words
"immediate possession" in section 132(3) of the Act. This
was the view of the High Court.
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There an order under section 132(3) was passed by the
Commissioner of Income-tax on the Collector of Customs and
Central Excise in respect of currency notes of the value of
Rs.2,02.500 belonging to a firm, which the Collector was
holding under the Gold Control Act and which, as no offence
was committed under that Act, the Collector had ordered to
be released. It was also held by the High Court that the
Collector was under a legal obligation to return the
currency notes to the firm after the proceedings under the
Gold Control Act had been finalised. The power of the
Collector was only to retain the currency notes for a
limited period. It could be held that the currency notes
were held by the Collector for and on behalf of the firm and
the order passed under section 132 was valid.
For the reasons mentioned hereinbefore, we are unable
to sustain that view of the High Court. As mentioned before
though legal title might have been with the person whose
income was sought to be taxed the physical possession was
with the Customs authorities. Our attention was drawn to a
bench decision of the Madras High Court where similar view
was taken in Gulab and Company and Anr. v. Superintendent of
Central Excise (Preventive) Trichy, and ors.. 98 I.T.R. 581
(Mad.). For the reasons we have indicated hereinbefore, we
are also unable to sustain this view. The Kerala High Court
in the case of Assainar and Anr. v. Income-tax Officer,
Calicut and on,., 101 I.T.R. 854 (Kerala) also accepted this
view. We are, for the aforesaid reasons, unable to sustain
this view with respect. The High Court observed that the
word "search" has varied meanings and it should be given the
general meanings "to look for" or "seek" which are also well
known. But in the context the expression "seizure" and in
the context
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the expression "search" where the location of the property
was known A to the Government, we are of the opinion that it
could not be said that one government department could
search any other government department, and seize those
documents.
Relying on the decision of the Allahabad High Court in
Motilal’s case (supra) as well as the decision of the
Calcutta High Court in Laxmipat’s case (supra), the learned
single judge of the Punjab and Haryana High Court in Ramesh
Chander v. Commissioner of Income Tax (supra) held that the
word "seizure" implied forcibly taking from the owner or who
has the possession and who was unwilling to part with the
possession. In that case custody was with the police and it
would be inappropriate to accept the position that the
income tax department which was another department of the
Union of India had to be armed with authority to seize from
the unwilling persons. We are in agreement with these views
of the learned single judge. This view of the learned single
judge has been confirmed in the judgment of the division
bench, already referred to hereinbefore (reported in 93
I.T.R. p. 450). The lacuna in law has subsequently been
filled in by 132A of the Act with effect from October, 1975.
In the view of the law as it stood at the relevant
time, we are unable to sustain the challenge to the order,
impugned in this appeal. The appeal, therefore, fails and is
accordingly dismissed with the . observations that it will
be open to the Income-tax authorities to approach the
appropriate authorities to realise any amount of money or to
recover any books of account or documents in accordance with
law. In the facts and the circumstances of the case, parties
will pay and bear their respective costs.
S.R. Appeal dismissed.
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