BHAGWANDAS NARAYANDAS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) AS per authorisation issued by the respondent No. 1, who is Commissioner of Income -tax, Gujarat -II, under section 132 of the Income -tax Act, 1961, hereinafter referred to as 'the Act', the respondent No. 3, V.C. Shah, who is an Income -tax Officer and his party proceeded to the village, Nani Daman, and began the search of the business as well as residential premises of the petitioner, Bhagwandas Narayandas, on 10th July, 1969. While the search was in progress, there was some commotion created by some local people with the result that the search remained incomplete and was subsequently completed on 26th August, 1969. Certain articles including case of Rs. 59,000 and some fixed deposit receipts as well as ornaments were seized under a panchnama. Thereafter, on 29th August, 1969, a notice contemplated by rule 112A of the Income -tax Rules, 1962 (hereinafter referred to as 'the rules'), was issued allowing the petitioner an opportunity to explain the nature of the possession and source of the acquisition of the currency of Rs. 59,000. After the petitioner offered his explanation, the respondent No. 3, who is also an Income -tax Officer, passed the order contemplated by section 132(5) of the Act, determining the total income of the petitioner from undisclosed source at Rs. 2,64,500. For the tax assessed on this account, the cash of Rs. 59,000 which was seized, was appropriated. Other documents and valuable things seized during the course of the search have been retained by the department.

(2.) BEING aggrieved with this, the petitioner has now approached this court, inter alia, praying for a writ of mandamus or any other appropriate writ or direction or order directing the respondents to hand over to the petitioner the sum of Rs. 59,000 and fixed deposit receipts which have been attached during the course of the search. One of the prayers of the petitioner is for obtaining declaration that section 132 of the Act is ultra vires of the Constitution of India. But in view of the decision given by this court in Ramjibhai Kalidas v. I.G. Desai, Income -tax Officer : [1971]80ITR721(Guj) this question is not agitated.

(3.) SINCE these are the only four points, which are raised on behalf of the petitioner, during the course of hearing of this petition, we concentrate our attention only on these points.