K E JOHNSON Vs. LAXMIPAT CHORARIA

JUDGEMENT

(1.) This appeal is against a judgment and order dated November 20, 1970, by which the rule obtained by respondent No. 1 was made absolute by the trial court.

(2.) The facts relevant for the purpose of the present appeal are as follows :

(3.) One Laxmipat Choraria was apprehended by the customs officials at the Palam Airport at Delhi upon his landing at the airport from an internal flight on January 13, 1967, with Rs. 3,60,000. The residence and the office premises of Choraria at Bombay were searched by the Bombay customs authorities on the same evening. As a result of the search Indian currency notes amounting to Rs. 8,700 were recovered from the residence of Laxmipat Choraria and Indian currency notes amounting to Rs. 34,074 were recovered from his office premises at Bombay. The customs authorities carried out the search under the provisions of Section 105 of the Customs Act, 1962, as the customs authorities reasonably believed that the moneys in the hands of Choraria represented the sale proceeds of smuggled goods. It appears that during the search the officers of the income-tax department were also present. On February 14, 1967, the income-tax authorities at Bombay served a warrant of authorisation under Section 132 of the Income-tax Act, 1961, issued by the Commissioner of Income-tax, Calcutta. Under the authority of the said warrant issued by the Commissioner of Income-tax, Calcutta, the aforesaid sum of Rs. 42,744 was purported to have been seized by the income-tax authorities and was taken away by them from the customs authorities. Thereafter, on February 22, 1967, a notice was issued requiring Laxmipat Choraria to submit an explanation in writing as to the nature of possession and source of acquisition of the money seized by the income-tax authorities from the customs authorities at Bombay. This notice was issued under Section 132(5) of the Income-tax Act, 1961. An answer to this notice was sent by the authorised representative on behalf of Laxmipat Choraria stating that the said notice was issued without jurisdiction because such a notice could be issued only if there had been a seizure under Section 132(1) of the Income-tax Act, 1961. Thereafter, an order was passed under Section 132(5) of the Income-tax Act, 1961, by which it was held by the Income-tax Officer, "B " Ward, Hundi Circle, Calcutta, that Rs. 32,274(?) represented undisclosed income of the assessee and in the absence of any evidence as to to which previous year or years the income belonged it was assessed at the rate prevailing at the relevant assessment year, namely, 1966-67. In the application under article 226 of the Constitution, the respondent No. 1, who was the petitioner in the trial court, challenged the notice, dated February 22, 1967, issued under Section 132(5) of the Income-tax Act, 1961 (annexure " C" to the petition), and also the order, dated May 12, 1967, passed under Section 132(5) of the Income-tax Act, 1961 (annexure " E " to the petition).