MANMOHAN KRISHAN MAHAJAN Vs. COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) THIS judgment will dispose of Civil Writs Nos. 968, 969, 4894 and 4895 of 1975. All the petitioners are residing in house No. 355, sector 9-D, Chandigarh, along with Shri Mulkh Raj Mahajan, advocate, Chandigarh. The petitioners in Civil Writs Nos. 4894 and 4895 of 1975 are the sons of Shri Mulkh Raj Mahajan and the petitioners in Civil Writs Nos. 968 and 969 of 1975 are the daughters-in-law of Shri Mulkh Raj Mahajan, advocate, Chandigarh.

(2.) THE house of the latter was searched under a warrant of authorisation issued by the Commissioner of Income-tax, respondent No. 1, in exercise of the powers under Section 132 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), on October 17, 1974. When the authorised officer wanted to search the premises of the petitioners they raided objections that the same could not be searched in the absence of relevant authorisations by the Commissioner of Income-tax. It is alleged that on receipt of these objections the authorised officer rang up Shri J. S. Dulat, the Inspecting Assistant Commissioner of Income-tax, who sent a warrant authorising the search of the premises occupied by Shri Manmohan Krishan Mahajan, petitioner in Civil Writ No. 4894 of 1975, Shri Brij Mohan Mahajan, petitioner in Civil Writ No. 4895 of 1975 and Shri Jagmohan Mahajan, petitioner in Civil Writ No. 119 of 1975 (Jagmohan Mahajan v. Commissioner of Income-tax [1976] 103 ITR 579 (Punj)) decided on August 13, 1975. As a consequence of the search made, some jewellery and cash found from the premises in possession of the various petitioners were taken into possession under a memo prepared in accordance with law. The petitioners have challenged the legality of the search and seizure, inter alia, on the ground that the Commissioner of Income-tax could not have been satisfied within the meaning of Section 132 of the Act for coming to the statutory belief and the search having been conducted pursuant to a general warrant was illegal.

(3.) IT was also held by the Division Bench that issuance of general warrants or the warrants in which the name of a person whose premises were to be searched were not given, were illegal. The Division Bench also held that where the very basis under which action under Section 132 (1) of the Act could be founded was missing, no enquiry under Section 132 (5) of the Act could be held. In these circumstances, the cash and other items of jewellery recovered from the possession of Jagmohan Mahajan and another were ordered to be returned.