S. 132: A Practical Guide To The Law And Procedure Of Search And Seizure
Dr. K. Shivaram, Advocate
The power of search & seizure is a potent tool for the department to unearth unaccounted income. However, to mitigate the possibility of its misuse by over-zealous officials, the law has incorporated several safeguards. The author, an eminent advocate with rich experience in the subject, has explained the entire law in a succinct manner. His check list will ensure that the department and the taxpayers are always on the right side of the law
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1.1. One may recollect that in the year 1991, when the Chamber of Income-tax Consultants had organised the second All India Tax Conference, one of the session was regarding tax payers’ education programme. It was the first time in the history of taxation that the Chamber of Income tax Consultants had produced a “skit on Search and seizure”. The skit (play) was informative about how a search was conducted, the common mistakes committed by assessees and the like. In the year 1991, the Chamber of Tax Consultants also had a unique programme held at Baidas Hall, where the high income-tax payers of Mumbai were honoured. In this programme also, the play was enacted and was appreciated by all including the Chairman of the CBDT, the Commissioners of Income-tax of Mumbai and the officials of the search team. It is worth considering, subject to permission and precautions, if this play can be posted in the website of the Chamber of Tax Consultants or could be re-enacted during seminars like this.
There is no power contained in the Act or the Rules where by the movement of a person against search is ordered can be restricted. By refusing to give permission to the petitioner to attend his work in effect, it amounted to his confinement which is not permissible in law
1.2. One of the important provisions of the Constitution of India is Article 265, which provides that “no tax shall be levied or collected except authority of law”
Articles 226/ 227 of the Constitution of India provides that the citizens can approach the High Court when their fundamental rights are violated or when powers are exercised in a manner not authorised by the law. Search and seizure is an invasion into the privacy of the individual. A house, hut, home or castle of a person is his /her personal property and no one has a right to enter and disturb the peace without prior permission of the person in occupation. In R. K. Garg v. UOI (1981) 133 ITR 239 (SC) (255), the constitutional Bench observed that “Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc”.
1.3. It is to be acknowledged and appreciated that the department always does lot of preparation before conducting search proceedings. The search and seizure manual of the department contains various checklists to be adhered to by the search parties. In most of the search cases, department officials do follow the check lists.
2. What is the Object of search?
2.1.S.132 elaborates the circumstances under which a search and seizure action can be undertaken
As per the section 132, a search and seizure action can be undertaken against any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has no