BENGALI BABOO YADAY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE premises of the petitioners were searched on 13th Sept., 1985 and certain account books and other documents including pass books were seized. A seized memo was prepared on that date, a copy whereof has been filed as Annexure 1 to the writ petition. Its perusal indicates that only account books and documents as aforesaid had been seized and no assets of the petitioner had been seized . Since, however, it was stated in paragraphs 5 and 13 of the writ petition that the account in the name of petitioner No. 2, namely, Smt. Shanti, in the Bank of Baroda was also seized in which an amount of Rs. 51,047 is lying, the Standing Counsel appearing for the respondents, by an order of this Court passed on 10th March, 1986, was required to obtain instructions, if possible, by telegraph whether any order had been passed under sub-ss. (5) and (8) of S. 132 of the IT Act. 1961, in the present case.

(2.) SHRI Bharatji Agrawal, appearing for the respondents, has, on the basis of a post copy of the telegram received by him from the CIT, Agra stated the no order under S. 132(5) has been passed since no assets were seized. As regards the approval of the CIT contemplated by sub-S. (8) of S. 132 Shri Bharatji Agrawal on the basis of a letter sent by the CIT, Agra, made a statement that the CIT had allowed the ITO, Special Investigation Circle, Agra, to keep the account books of the assessee with him till 30th June, 1987. According to him in view of this order the ITO is entitled to retain the documents seized on 13th Sept., 1985 even beyond the period of 180 days contemplated by sub-S. (8) of S. 132. The prayer contained in the present writ petition is for the issue of a writ of mandamus directing the respondents to release the entire accounts and the document s of the petitioners which were seized by the seizure-memo dt. 13th Sept., 1985. In view of the statement made by the consul for the respondents there is no occasion for issue of any mandamus to release any account of the petitioners in bank, inasmuch as account in the bank meaning thereby money deposited in the Bank by the account holder which will fall within the term "asset" contemplated by S. 132(5) of the IT Act has not at all been seized. Since the ITO concerned has already obtained the approval of the CIT for retaining the documents seized on 13th Sept., 1985, beyond the period of 180 days and in pursuance of that approval he is entitled to retain the documents till 30th June, 1987, no mandamus at the present moment for their tern can be granted. As regards the second prayer for quashing the entire proceedings based on search and seized and for not giving effect to them, we are of the opinion that no case is made out for quashing the proceedings. The last prayer is for the issue of a writ in the nature of prohibition directing the respondents not to continue any proceedings against the petitioners in pursuance of the search and seizure. Suffice it to say in so far as this relief is concerned, that nothing has been stated in the writ petition as to what proceedings had been initiated in pursuance of the aforesaid search and seizure. This prayer also, therefore, does not deserve to be granted.