Search warrant is invalid if provisions of section 132 not attracted; HC quashes search proceedings

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Search warrant is invalid if provisions of section 132 not attracted; HC quashes search proceedings

2019] 105 taxmann.com 260 (Gujarat), Laljibhai Kanjibhai Mandalia v. Principal Director of Income-tax, Investigation),

 

  1. HARSHA DEVANI AND DR. A.P. THAKER, JJ. .R/SPECIAL CIVIL APPLICATION NOS. 16360 OF 2018 FEBRUARY  22, 2019

Section 132 of the Income-tax Act, 1961 – Search and seizure – General (Validity of authorisation)

– A search was conducted in case of assessee

– Assessee filed instant petition challenging authorisation issued under section 132

– It was noted that no summons or notice as envisaged under clause (a) of sub-section (1) of section 132 had been issued – It was also noted that belief of revenue that assessee would not respond to a summons or notice issued as envisaged under clause (b) of sub-section (1) of section 132 was not based upon any information or other material but was based upon conjectures and surmises that assessee would take alibi of lack of jurisdiction on part of respondents

– Thus, circumstance envisaged under clause (b) of sub-section (1) of section 132 also did not exist in instant case – Finally, there was nothing on record to indicate that any belief had been formed by competent authority to effect that assessee had in his possession any money, bullion, jewellery or other valuable article or thing which would not have been disclosed by him for purposes of Act

 – Whether in view of aforesaid, it could be concluded that none of clauses (a), (b), or (c ) of sub-section (1) of section 132 was attracted and, thus, impugned authorisation being invalid, search proceedings in question deserved to be quashed

– Held, yes [Paras 12, 16, 17 and 19]

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