RAJESH RAJORA Vs. CHIEF COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE petitioners have challenged the search and seizure operation undertaken by the respondents under section 132(1) of the Income Tax Act, 1961 (hereinafter referred to as 'Act' for short), in their premise (residence) on dt.30.5.2008.

(2.) THE facts of the case are that both the petitioners are Government servants. They are salaried persons and are filing their Income Tax return on time, duly supported by necessary documents. Both the petitioners had been regularly assessed by the Income Tax Department. The Accounts submitted by them were duly verified by the Assessing Officer every year. The petitioners were also maintaining their account books with vouchers and documents in support thereof, which were also being produced along with the return. The petitioners were occupying official residence No.XD -A1, Char Imli, Bhopal. The search was conducted as a consequential search after the search was carried out at the premises of Dr. Yogi Raj Sharma, the then Director of Department of Public Health and Family Welfare, Government of Madhya Pradesh. The petitioner no.1 was posted as Home Secretary in the Government of Madhya Pradesh at the relevant time when the search was carried out on 30.5.2008 by the respondents on the basis of an authorization issued by respondent no.4. During the search all the documents, books vouchers available at the premises of the petitioners were taken away by the respondents without any verification. The aforesaid search has been alleged to be conducted by the respondents with a predetermined belief that all the assets in the house of petitioners were un -accounted and un -disclosed. As per the petitioners, 31 pages were seized from the possession of the petitioners out of which 25 pages were photocopies of their official passport and rest 6 pages were either dumb documents or were not related with the petitioners. Similarly 31 pages were seized from petitioner no.1's father -in -law, who had retired from Indian Army in 1984 and was residing in the Guest House of the residence of the petitioner, who had came at the relevant time to visit his daughter. Cash of Rs. 27,767/ -, gold jewellery weighing 435 grams, silver utensils and articles worth Rs.2.07 lakhs were found in the possession of petitioners. A panchnama Annexure P -1 was prepared in respect of the aforesaid search and seizure memo was also prepared. This search and seizure has been challenged by the petitioners by filing present petition on the grounds : -

(3.) IN reply to it Shri Vikas Pahwa, learned Senior Advocate appearing on behalf of petitioners submitted that the conduction of search and seizure was entirely malafide on the part of respondent no.4 and in fact it is a mala fide search because the petitioner no.1 who was the Home Secretary at the relevant time was assigned with the work of allotment of houses. That the officer who had issued warrant of authorization Shri S.S. Rana applied for allotment of the house on 23.1.2008. The petitioner who was In charge for the allotment of the house, processed the application, but took near about 4 months time. Because of the aforesaid delay of process the respondent no.4 who was the Director of Income Tax Investigation became highly annoyed with the petitioner and directly applied to the Chief Minister for the allotment of the house. The said house was directed to be allotted by the Chief Minister on 20.5.2008. Immediately thereafter, the respondent no.4 on 28.5.2008 issued warrant of authorization and on 30.5.2008 the search was conducted. Stating aforesaid it was submitted that the entire action on the part of respondent is mala fide and tainted with the act of prejudiced -mind and on this ground warrant of authorization could not have been issued. No recovery or any illegal property was seized from the premises of the petitioners, however on 25.1.2010 a notice under section 153A of the Act was issued and the petitioner no.1 was suspended and on 19.3.2010 though a chargesheet was issued, but on 9.11.2012 the said was dropped. It is submitted that there is no delay on the part of petitioners in challenging the aforesaid action. It is also submitted by the petitioners that the search and seizure could have been challenged only by filing a petition and for this purpose no other proceeding except invocation of jurisdiction of this Court under Article 226/227 of the Constitution of India could have been made.