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PETITIONER: INCOME-TAX OFFICER, SPECIAL INVESTIGATIONCIRCLE-B,  MEERUT

       Vs.

RESPONDENT: M/S. SETH BROTHERS AND ORS.

DATE OF JUDGMENT: 15/07/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. MITTER, G.K.

CITATION:  1970 AIR  292            1970 SCR  (1) 601  1969 SCC  (2) 324  CITATOR INFO :  R          1970 SC1651  (5)  D          1972 SC 591  (22)  R          1985 SC 989  (16)

ACT:     Indian  lncome Tax Act (43 of 1961), s. 132--Search  and seizure-Scope  of  power--Seizure  of  a  large  number   of documents, some of which not, relevant to pending proceeding under Act--If mala fide.

HEADNOTE:     Under   s.  132  of  the  Income-tax  Act,  1961,    the Commissioner   of Income-tax or the Director  of  Inspection may,  after recording reasons, order the search of  premises if  he  has  reason  to believe that  one  or  more  of  the conditions  in s. 132(1) exist.  The officer authorised  may enter  any  place and make a search where he has  reason  to believe  that books or documents relevant to any  proceeding under  the  Act may be ,found.  He may seize  any  books  or documents and place marks of identification on them, and may remove them to the income-tax office.  By the express  terms of the Act and the Income-tax Rules, the officer  designated to make the search may obtain the assistance of the police.     The Income-tax Officer issued notice to the  respondent- firm   that  its  income  chargeable  to  tax  had   escaped assessment and that it was proposed to reassess the  income. He  also gave information to the Commissioner of  Income-tax that  the respondent was maintaining duplicate  records  for evading  assessment  of the true income  and  requested  the Commissioner  for  authorisation under s. 132 to  enter  and search  the  premises where the respondent was  carrying  on business.  The Commissioner recorded his reasons and  issued an  order in the prescribed form authorising two  Income-tax Officers to enter the premises, to search for and seize such books and documents as may be considered relevant or  useful for the purpose of reassessment, and to place identification marks  thereon and to convey them to the income-tax  office. The premises were accordingly searched and the account books and certain documents found therein were seized and  carried to the income-tax office.  Petitions were filed in the  High Court  for writs of certiorari for quashing the  proceedings

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of  the Income-tax authorities, and  consequential  reliefs. The  High Court granted the writs on the grounds:  (1)  that the  order  of search was made by the  Commissioner  at  the direction  of  the  Directorate of  Inspection  and  without satisfying  himself  about the  existence  of  circumstances justifying search; (2) that besides the documents  belonging to  the respondent the Income-tax Officers seized  documents relating  to the transactions of their allied concern  which documents were irrelevant to the process of reassessment  of the  respondent; (3) that marks of identification  were  not placed  on certain documents at the time they  were  seized; (4)  that the documents seized were detained by the  Income- tax  Officer  for  more than two months; and  (5)  that  the police force employed during the raid was excessive.     In appeal to this Court,     HELD:  (1)  The  Commissioner  stated  in  his   counter affidavit  that  before  issuing the  authorisation  he  was satisfied that it was necessary to take action under s.  132 and that the authorisation was not issued at the 602 direction  of  the Directorate of  Inspection.   The  Deputy Director  of Inspection also stated in his  affidavit   that he  never  gave any  direction to the Commissioner to  issue authorisation for search and seizure. Therefore, in reaching the conclusion that the Commissioner acted at the behest  of the  Director  of Inspection, the High Court was  in  error, because,  having  held that the correctness of  the  opinion formed  by  the  income-tax  authorities  was  not  open  to scrutiny  in  a writ petition the High Court acted  on  mere affidavits  and accepted the assertions of  the  respondents which  were specifically denied by the Revenue  authorities. [612 B-C; 613 D; 614 A-B]     (2) Since the power conferred, though not arbitrary,  is a  serious invasion upon the rights and privacy of the  tax- payer,  the power  must be strictly exercised in  accordance with  law  and  only  for the purposes  for  which  the  law authorises it to be exercised.  If the action of the officer issuing  the authorisation or of the officer  designated  to make  the search is challenged, they must satisfy the  court about the regularity of the action taken.  If the action  is maliciously  taken or for a collateral purpose it is  liable to  be struck down.  But where the power is  exercised  bona fide  and  in  furtherance of the statutory  duties  of  the Revenue  Officers any error of judgment on the part  of  the officers  will not vitiate the exercise of the  power.   The Act  and  the Rules do not require that  the   authorization should  specify  the particulars of documents and  books  of account; a general authorisation to search for and to  seize documents and books of account relevant to or useful for the proceeding  under the Act complies with the requirements  of the  Act  and the Rules.  It is for the officer  making  the search  to exercise his judgment and seize or not  to  seize any  documents or books of account.  An error  committed  by the  officer  in seizing documents which may  ultimately  be found  not  to be useful for or relevant to  the  proceeding will  not by itself vitiate the search, nor will it  entitle the  aggrieved  person  to an omnibus  order  releasing  all documents seized. [608 G-H; 609 A-F]     In  the present ease, therefore, merely because a  large number  of documents, some of which related to the  concerns allied  to  the respondent-firm, were seized, it  could  not lead to the inference that the search and seizure  were  for a collateral purpose.  On the contrary, the books of account and the documents in respect of other businesses carried  on by  the partners of the respondent-firm through  the  allied

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firms  would  be relevant, because, they would  show  inter- relation  between the  dealings and supply materials  having a  bearing  on  the case of evasion  of  income-tax  by  the respondents.   Therefore,  the search and seizure  were  not illegal or mala fide. [609 G; 612 F-]H     Income-tax Officer, A-ward, Agra v. Firm Madan Mohan, 70 I.T.R. 293, approved.     (3)  Assuming  that  marks of  identification  were  not placed  On some documents, it was a mere  irregularity  and, unless  the documents were shown to be tampered with,  would not make the  search  and  seizure mala fide. [612 H]     (4)  A delay of two months in issuing a  notice  calling for  explanation is also not a ground for holding  that  the action was taken for a collateral purpose. [613 A-B]     (5)  Keeping  police  officers present at  the  time  of search in the house of influential businessmen to ensure the protection  of the officers and the record, would not  be  a case of excessive use of force. [613 B-C] 603

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 700  to 703 of 1965.     Appeals  by  special leave from the judgment  and  order dated  March 27,  1964 of the Allahabad High Court in  Civil Misc. Writs Nos. 3302, 3381, and 3382 of 1963.     Sukumar Mitra, S.K.  Aiyar, R.H. Dhebar and B.D. Sharma, for the ,appellant (in all the appeals).     M.C.  Chagla, S.C. Manchanda, P.N. Pachauri,  P.N.  Duda and D.N. Mukherjee, for respondent No. 1 (in C.A. No. 700 of 1965).     S.C.  Manchanda,  P.N.  Pachauri, P.N.  Duda   and  D.N. Mukherjee  for respondent No. 1’ (in C.A. No. 701 of 1965).     S.C.  Manchanda,  P.N.  Pachauri,  S.M.  Jain  and  B.P. Maheshwari, for respondent No. 1 (in C.As. Nos. 702 and  703 of 1965).     The Judgment of the Court was delivered by     Shah, J. M/s. Seth Brothers run a flour mill in the name and style of "Imperial Flour Mills".  From April 1, 1953  to March  1956  the  business  was  carried  on  by  M/s.  Seth Brothers,  of  which  the partners were  Baikunth  Nath  and Vishwa  Nath.   Between March 1956 and March 31,  1957,  the business was carried on by Baikunth Nath,  Vishwa Nath,  Dr. Manmohan  Nath,  Mrs. Rama Rahi and Mrs.  Sushila  Devi.  On April 7, 1957 Mrs. Prem Lata was admitted as a partner.  The partners were engaged in carrying on other businesses in the names  of  Seth  Brothers  (Private)  Ltd.,  Nath   Brothers (Private) Ltd., and Meerut Cold Storage and General Mills.     The  owners  of  the business  were,  year  after  year, assessed  to income-tax in respect of the income arising  in the course of the business. On March 14, 1963 the Income-tax Officer, Meerut issued a notice under s. 148 of the  Income- tax Act, 1961, intimating M/s. Seth Brothers that there  was reason  to believe that their income chargeable to  tax  had escaped  assessment  and it was proposed  to  reassess  this income for the assessment year 1954-55.  In response to  the notice  Baikunth Nath and Vishwa Nath flied a  return  under protest.   In the meantime information was received  by  the Income-tax Commissioner, U.P., that M/s. Seth Brothers  were maintaining "duplicate records" and were evading  assessment of their true income and that it was necessary to seize  the records  which may be found at "Shanti Niketan,"  Meerut  in which M/s. Seth Brothers carried on the business of Imperial

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Flour Mills and other business.  The Commissioner of Income- tax,  U.P., on May 29, 1963 drew up a memorandum that  on  a report of the Income-tax Officer, D-Ward,, Meerut requesting for 604 authorisation under s. 132 of the Income-tax Act, 1961,  to. enter and search the premises of M/s. Seth Brothers, he  was satisfied about the need for the issue of the authorisation. The Commissioner also issued an order in Form 45  prescribed under  Rule 112 of the Income-tax Rules,  1962,  authorising two  Income-tax  Officers--R. R. Agarwal and  R.  Kapoor--to enter the premises known as "Shanti Niketan", at Meerut  and to  search for and seize such books and documents as may  be considered  relevant  or  useful  for  the  purpose  of  the proceeding  of  reassessment, and  to  place  identification marks thereon and to convey them to the Income-tax Office.     On the. 7 and 8 of June,  1963 the premises described in the  order  were  searched and  account  books  and  certain documents found therein were seized and were carried to  the Income-tax Office.  M/s. Seth Brothers then moved a petition in  the High Court of Allahabad, for an order  quashing  the proceedings  of the Income-tax authorities.  Petitions  were also  filed by Nath Brothers (Private) Ltd.,  Seth  Brothers (Private)  Ltd.  and  Seth Brothers,  Meerut  for  the  same relief.  By these petitions they claimed writs of certiorari quashing the  letters  authorising  search  of the  premises at  Shanti  Niketan,  and writs of  mandamus  directing  the Income-tax  Officer  to  return all the  books,  papers  and articles   seized  during  the  search  and  for  writs   of prohibition restraining the Income-tax Department from using any information gathered as a result of the search.  It  was submitted  by the petitioners that K.L.  Ananda,  Income-tax Officer  and  Satya Prakash an "ex-employee"  of  M/s.  Seth Brothers had given false information to the Deputy  Director of Inspection with a view to blackmail the partners of  M/s. Seth Brothers, and that the order of search was made by  the Commissioner  of Income-tax at the direction of  the  Deputy Director  of Inspection, that the action of  the  Income-tax Officer  in searching the premises and in seizing the  books of  account was malicious and that in any  event s.  132  of the  Income-tax Act, 1961, and the rules framed  thereunder, were  violative  of the fundamental freedoms  guaranteed  by Arts. 14, 19(1)(f) & (g) and 31 of the Constitution.     Affidavits  were filed on behalf of M/s. Seth  Brothers. It  was  affirmed  that "the  so-called  duplicate  records" seized by the Income-tax Officer were copies of the books of account  and that action had been taken by the  Commissioner of  Income-tax, not on his own initiative but at the  behest of   the  Directorate  of  Inspection.   In  reply  to   the contentions raised by the assessees several affidavits sworn by  Officers of the Income-tax Department were  filed.   The Commissioner  of  Income-tax stated in  his  affidavit  that before  issuing letters of authorisation and the warrant  of search  he  was  satisfied that it was  necessary  to   take action 605 under  s. 132 of the Indian Income-tax Act, 1961,  and  that the  letters  of  authorisation  were  not  issued  at   the direction of the Directorate of Inspection.  The  Income-tax Officers  stated that in consequence of the search  a  large number  of "duplicate account books and records"  maintained by  M/s. Seth Brothers were recovered, that the  search  was carried  out according to law and in the presence of two  of the  partners of the firm and their advocates, that all  the documents   seized   were  relevant  for  the   purpose   of

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reassessment,   that there was close connection between  the different  business activities of the partners of M/s.  Seth Brothers  and that all the documents which were seized  were in  relation  to those activities.  The Deputy  Director  of Inspection in his affidavit stated that he did not give  any direction  to  the Commissioner to issue  authorization  for search and seizure.     The  High Court of Allahabad held on a consideration  of the  averments made in the affidavits filed on l  behalf  of M/s Seth Brothers and the revenue that "there was reason  to believe" that instructions were issued by the Directorate of Inspection  for  a general raid and seizure of  all  account books  and papers which may be found at the premises of  the firm;  that some out of the documents seized by the  Income- tax  Officers  were  irrelevant  for  the  purpose  of   any proceeding  under  the  Act:  that  besides  the   documents belonging  to  M/s  Seth Brothers  the  Income-tax  Officers seized documents relating to the transactions of the  allied concerns;  that marks of identification were not  placed  on certain  documents  at the time they were seized;  that  the documents seized were detained by the Income-tax Officer for more  than  two months; and that the police  force  employed during the raid was excessive. The High Court concluded:--                     "It  is true that there was no  iII-will               between   the   ......   (partners   of   Seth               Brothers) on one  side  and respondent Nos. 1,               3  and 4 (Commissioners of Income-tax, U.P.  &               Punjab   and  Income-tax   Officer,    Special               Investigation  Circle A, Meerut) on the  other               side.   But the extent of the seizure was  far               beyond  the limits of s. 132 of the  Act.  The               action was mala fide in  the sense that, there               was  abuse  of power conferred  on  Income-tax               Officers by s. 132 of the Act.  The act  being               main fide, the proceedings .should be  quashed               by this Court by issuing a writ of mandamus." The  Income-tax  Officer, S.I. Circle has appealed  to  this Court with special leave.     Section  132 as originally enacted by Act 43   of   1961 was  substituted by a modified provision by the Finance  Act of  1964  which  in its turn was replaced by  s.  1  of  the Income-tax  (Amendment) Act, 1965.  By s. 8 of that  Act  it was provided, inter alia, 606 that  any  search  of  a building or  place  by  an   ...... Income-tax Officer purported to have been made in  pursuance of sub-s. (1) of s. 132 of the principal Act shall be deemed to have been made in accordance with the provisions of  that sub-section  as  amended  by the Act of  1965  as  if  those provisions  were  in  force  on  the  day  the  search   was made  ......  The relevant part of s. 132 as substituted  by the Income-tax (Amendment) Act, 1965 may, there.fore, be set out:       "132.. Search and seizure.--(1) Where the Director  of Inspection   or   the  Commissioner,   in   consequence   of information in his possession, has  reason  to  believe that--       (a) any person to whom a summons under sub-section (1) of  section  37  of the Indian Income-tax  Act,1922  (XI  of 1922),  or  under  sub-seCtion  (1)  of section 131 of  this Act, or a notice under sub-section (4) of’ section 22 of the Indian  Income-tax  Act, 1922,or under  sub-section  (1)  of section  142 of this Act was issued to produce, or cause  to be  produced,  any books of account or other  documents  has omitted or failed to  produce, or cause to be produced, such

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books  of  account  or other documents as required  by  such summons  or  notice, or       (b)  any  person  to  whom  a  summons  or  notice  as aforesaid  has  been or might be issued will not,  or  would not, produce or cause to be produced, any books  of  account or  other documents. which will be useful for,  or  relevant to.,  any proceeding under the Indian Income-tax  Act,  1922 (XI of 1922), or under this Act, or       (c)  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 not been disclosed for the  purposes  of the  Indian Income-tax Act, 1922 (XI of 1922), or  this  Act (hereinafter in this section referred to as the  undisclosed income or property), he   may  authorise  any  Deputy  Director  of   Inspection, Inspecting  Assistant  Commissioner, Assistant  Director  of Inspection or Income-tax Officer (hereinafter referred to as the authorised officer) to--                   (i) enter and search any building or place               where  he  has reason to  suspect  that   such               books   of account, other  documents,   money,               bullion,  jewellery or other valuable  article               or thing are kept; 607               (ii)  break  open the lock of any  door,  box,               locker,          safe,   almirah   or    other               receptacle for exercising the powers conferred               by clause (i) where  the keys thereof are  not               available;               (iii) seize any such books of account,   other               documents, money, bullion, jewellery or  other               valuable  article or thing found as  a  result               of  such search;               (iv)  place  marks of  identification  on  any               books  of account or other documents or  make’               or  cause  to  be  made  extracts  or   copies               therefrom;               (v)  make a note or an inventory of  any  such               money,  bullion, jewellery or  other  valuable               article or thing.                      (2)   The   authorised   officer    may               requisition the services of any police officer               or of any officer of the Central Government or               of  both, to assist him for all or any of  the               purposes  specified in sub-section (1) and  it               shall  be  the duty of every such  officer  to               comply  with  such requisition.                      (3)  The authorised officer may,  where               it   is   not practicable to  seize  any  such               books  of  account,   other  document,  money,               bullion,  jewellery or other valuable  article               or thing, serve an order on the  owner or  the               person  who  is  in  immediate  possession  or               control thereof that he shall not remove, part               with or otherwise deal with it except with the               previous   permission   of  such  officer  and               such  officer  may take such steps as  may  be               necessary  for ensuring compliance  with  this               sub-section.                         .................................                      (8)  The  books of account   or   other               documents seized under sub-section (l )  shall               not be retained by the authorised officer  for

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             a   period  exceeding  one hundred and  eighty               days  from the date of the seizure unless  the               reasons for retaining the same are recorded by               him  in  writing  and  the  approval  of   the               Commissioner for such retention is obtained:               Provided               (13)  The provisions of the Code  of  Criminal               Procedure,  1898  (V  of  1898),  relating  to               searches  and seizures shall apply, so far  as               may  be, to searches  and seizure  under  sub-               section (1)." 608 The  Central Board of Direct Taxes has, in exercise  of  the power  conferred  by  s. 295(1) of the Act,  framed  r.  112 prescribing the procedure to be followed by the Commissioner and the authorised officers.     The  Commissioner  or  the Director  of  Inspection  may after  recording reasons order a search of premises,  if  he has reason to believe that one or more of the conditions  in s.   132(1)  exist.  The  order  is  in  the  form   of   an authorization  in  favour  of  a  subordinate   departmental officer authorising him to enter  and  search  any  building or place specified in the order, and to exercise the  powers and  perform  the functions mentioned in s. 132 (1  ).   The Officer  so authorised may enter any building or  place  and make a search where. he has reason to believe that any books of  account or other documents which in his opinion will  be useful for, or relevant to any proceeding under the Act, may be  found.  The  Officer making a search may seize any books of   account   or  other  documents  and  place   marks   of identification  on  any  such  books  of  account  or  other documents  or  make or cause to be made extracts  or  copies therefrom  and  may  make an inventory of  any  articles  or things  found  in  the course of any  search  which  in  his opinion  will be useful for, or relevant to. any  proceeding under the  Act, and remove them to the Income-tax Office  or prohibit  the person in possession from removing  them.   He may  also  examine on oath any person in  possession  of  or control of  any  books  of account or documents or assets.      The  section  does not confer any  arbitrary  authority upon the Revenue Officer.  The Commissioner or the  Director of  Inspection  must have, in  consequence  of  information, reason  to  believe that the statutory  conditions  for  the exercise of the power to order search exist.  He must record reasons for the belief and he must issue an authorization in favour  of a designated officer to search the  premises  and exercise  the  powers set Out therein.   The  condition  for entry into and making search of any building or place is the reason  to  believe  that  any books  of  account  or  other documents  which  will be useful for, or relevant  to,   any proceeding under the. Act may be found. ’ If the Officer has reason  to  believe  that  any books  of  account  or  other documents  would  be   useful  for,  0r  relevant  to,   any proceedings under the Act, he is authorised by law to  seize those  books of account or other  documents, and  to.  place marks of identification therein, to make extracts or  copies therefrom  and  also to make a note or an inventory  of  any articles or other things found in the course of the  search. Since  by  the exercise of the power a serious  invasion  is made upon the rights, privacy and freedom of the  tax-payer, the power must be exercised strictly in accordance with  the law  and only for the purposes for which the law  authorizes it to. be  exercised.  If  the action of the Officer issuing the authorization, or of the designated 609

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Officer is challenged the Officer concerned must satisfy the Court about the regularity of his action.  If the action  is maliciously  taken or power under the section  is  exercised for a collateral purpose, it is liable to be struck down  by the  Court.   If the  conditions for exercise of  the  power are’  not satisfied the proceeding is liable to be  quashed. But  where power is exercised bona fide, and in  furtherance of  the  statutory duties of the tax officers any  error  of judgment on the part of the Officers will not  vitiate   the exercise  of the power.  Where the  Commissioner  entertains the  requisite  belief  and  for  reasons  recorded  by  him authorises   a  designated  Officer  to  enter  and   search premises   for  books  of account and documents relevant  to or useful for any  proceeding under the Act, the Court in  a petition  by  an   aggrieved   person  cannot  be  asked  to substitute  its  own opinion whether  an  order  authorising search should have been issued.  Again, any irregularity  in the  course  of entry, search and seizure committed  by  the Officer acting in pursuance of the authorisation will not be sufficient to vitiate the action taken, provided the Officer has in executing the authorisation acted bona fide.     The  Act and the Rules do not require that the   warrant of   authorisation   should  specify  the   particulars   of documents  and books of account: a general authorisation  to search for and seize documents and books of account relevant to.   or  useful  for  any  proceeding  complies  with   the requirements of the Act and the Rules. It is for the Officer making  the search to exercise  his  judgment and  seize  or not  to  seize any documents or books of account.  An  error committed  by  the Officer in seizing documents   which  may ultimately be’ found not to be useful for or relevant to the proceeding  under  the Act will not by  itself  vitiate  the search,  nor  will  it entitle the aggrieved  person  to  an omnibus order releasing all documents seized.     The aggrieved party may undoubtedly  move  a   competent Court for an order releasing the documents seized.  In  such a  proceeding the Officer who has made the search  will   be called upon to prove how the documents seized are likely  to be useful for or relevant to a proceeding under the Act.  If he  is  unable  to do so, the Court  may  order  that  those documents  be released.. But the circumstance that  a  large number  of  documents have been seized is not a  ground  for holding  that  all documents seized are  irrelevant  or  the action  of the Officer is mala fide.  By the  express  terms of  the Act and the Rules the Income-tax Officer may  obtain the  assistance of a police officer.  By sub-s. (13)  of  s. 132 the provisions of the Code of Criminal Procedure,  1898, relating  to  searches apply so far as may be,  to  searches under  s.  132. Thereby it is only intended that the officer concerned  shall issue the necessary warrant,  keep  present respectable  persons of the locality to witness the  search, and generally carry out the search 610 in  the manner provided by the Code of  Criminal  Procedure. But sub-s.(2) of s., 132 does not imply that the limitations prescribed  by s. 165 of the Code of Criminal Procedure  are also incorporated therein.     In  Income-tax  Officer, A-Ward, Agra & Others  v.  Firm Madan Mohan Demma Mal and Another(1), it was observed   that the  issue of a search warrant by the Commissioner is not  a judicial   or   a  quasi-judicial  act  and  even   if   the Commissioner  is  enjoined to issue a warrant only  when  in fact  there is information in his possession in  consequence of which he may form the necessary belief, the matter is not thereby  subject to scrutiny by the Court.  Section  132  of

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the  Income-tax  Act does not require  specific  mention  by description  of  each particular document which has  to   be discovered  on  search:  it  is  for  the  Officer  who   is conducting  the  search  to  decide  whether  a   particular document found on search is relevant for the purpose or not. That  statement  of  the law, in  our  judgment,  accurately states  the true effect of s.  132.  The mere fact  that  it may  ultimately be found that some  document seized was  not directly  relevant to any proceeding under the Act  or  that another  officer with more information at his  disposal  may have come to a different conclusion will not be a ground for setting  aside the order and the proceeding for  search  and seizure.     The  authorisation issued by the Commissioner  was,   in the view of the High Court, open to challenge on the  ground that  the  Commissioner  did  not  apply  his  mind  to  the existence  of  circumstances which justified the exercise of the   power   to  issue authorisation.  The  action  of  the Income-tax  Officers who. searched the premises was  quashed on  the  ground that they seized some documents  which  were irrelevant to the process of reassessment. In our  judgment, in reaching their conclusion that the Commissioner acted  at the  behest  of the Director of Inspection, the  High  Court ignored important evidence on the record.  It was averred in the petition of M/s Seth Brothers that--                 "(56) It appears that the Deputy Director of               Inspection  at  the instigation of  Shri  K.L.               Nanda  and Sri Satya Prakash,  without  making               any enquiries or having any material, ’ordered               a  raid  for search and seizure  of  all  ,the               account  books  and  papers,  which  could  be               found.                  (57) That, according to such directions  of               the  Directorate, the Commissioner of  Income-               tax,   U.P.  Lucknow,  was  made   to    issue               authorisations under s. 132 of the Act of 1961               in- favour of opposite Parties Nos. 3 and 4 to               search out the (1) 70 I.T.R. 293. 611 premisses of Shanti Nikethan’,Civil Lines, Meerut,  premises of   ’Shanti  Niketan’and  to  seize  the  account   ’books, documents and papers, which could be recovered therefrom.            ................................ The  High  Court  observed  that even  though  a  number  of affidavits  were’  filed by the Income-tax  authorities,  no reference   to  paragraph 56 of the writ petition  was  made and the "only  affidavit filed by Shri A.L.Jha, Commissioner of Income-tax was vague in the extreme".  The allegation  in paragraphs  56  & 57 of the writ petition made  no  definite allegation.  that the  Commissioner  of Income-tax acted  at the  behest of the Deputy Director of Inspection and not  on his  own satisfaction reached in consequence of  information in his possession.  In the verification clause Baikunth Nath stated  that  the  contents of paragraph  57  were  true  on information  received  from Deputy  Director  of  Inspection (Investigation), Income-tax, Central Revenue Buildings,  New Delhi. but said nothing about the contents of paragraph  56. The ’affidavits filed on behalf of the Income-tax Department specifically  denied the allegations made in paragraphs 56 & 57.   R.   R.   Agarwal  (one  of  the  Income-tax  Officers authorised to conduct the search) in his affidavit  affirmed that  the letter of authorisation was issued to him  by  the Commissioner   of  Income-tax,  U.P.  Lucknow,   after   the Commissioner  had been satisfied on the report submitted  by

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the deponent.       The  Commissioner of Income-tax, Mr. A.L. Jha, by  his affidavit  denied  that  letters   of   authorisation   were issued  under  the  directions of  the  Deputy  Director  of Inspection  or anybody connected with Directorate.  He  also stated  that  in respect of the case of M/s.  Seth  Brothers some  information was brought to him by the Directorate  and that information corroborated the report made to him by  Mr. R.R..  Agarwal and that after taking into consideration  all those  materials  he  was satisfied that  a  search  of  the premises of M/s. Seth Brothers "was called for" and that  he issued the impugned letters of authorisation.     Mr.  R.V.  Ramaswamy,  Deputy  Director  of   Inspection (Investigation) in paragraph 6 of his affidavit denied  that the raid or search of the premises of M/s. Seth Brothers was ordered by him.     The  affidavit of R. Kapur, Income-tax Officer,  Special Investigation   Circle,   who   was   authorised   by    the Commissioner   of  Income-tax  to make the  search  is  also relevant.   Mr.   Kapur averred that  some  information  was received  by Mr. R.R. Agarwal   from which it appeared  that the firm of M/s. Seth Brothers and its partners were "evading tax by maintaining duplicate sets of  accounts"  and  by suppressing  relevant  documents  and papers 612 from  the Department; that Mr. R.R. Agarwal made  a  written request  to  the Commissioner of Income-tax for  letters  of authorisation  in  order  to carry out  the  search  of  the assessee’s premises and in pursuance thereof on May 29, 1963 the  Commissioner of Income-tax issued  three  authorisation letters, two in favour of Mr. R.R. Agarwal and one in favour of the deponent authorising them to, carry out the search in accordance with the terms of the ’authorisation letters.     In this state of the record we are unable to agree  with the High Court that the letters of authorisation were issued by  the Commissioner of Income-tax at the direction  of  the Director  of Inspection (Investigation).  The  attention  of the  Court  was  presumably  not  invited  to  the  relevant paragraphs of the ’affidavits of the Officers concerned.     It is true that a large number of documents were  seized from  the  premises of M/s. Seth Brothers but  that  has  by itself no direct beating on the question whether the Income- tax Officer  acted mala fide.  If the Income-tax Officer  in making  ’a  search had reason to believe that any  books  of account  or other documents useful for, or relevant to,  any proceeding under the Act may be found, he may make a  search for  and  seize  those   ’books   of  account  ’and   other, documents.  Some books, maps of the cold storage, assessment returns,  and  doctor’s  prescriptions were  seized  by  the Income-tax Officer.  It appears, however, from the inventory that  a  large  number of documents  which  related  to  the business  of  the assessees and their allied  concerns  were also  seized.  It  would  be  impossible  merely  from   the circumstance that some of the documents may be shown to have no clear or direct relevance to any proceeding under the Act that the entire search and seizure was made not in bona fide discharge of official duty but for a collateral purpose. The suggestion  that the books of ’account and  other  documents which  could  be taken possession of should  only  be  those which  directly  related to the business carried on  in  the name  of  M/s.  Seth  Brothers  has,  in  our  judgment,  no substance.   The  books of account and  other  documents  in respect  of other businesses carried on by the  partners  of the  firm  of  the assessees  would  certainly  be  relevant

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because they would tend to  show  interrelation between  the dealings ’and supply materials having a bearing on the  case of evasion of income-tax by the firm.  We are unable to hold that  because the Income-tax Officers made a search for  and seized  the books .of account and documents in  relation  to business  carried  on  in  the  names  of  other  firms  and companies, the search and seizure were illegal.     It  is also said that marks of identification  were  not placed on several documents.  Assuming that this  allegation is  true,  in  the  absence of anything  to  show  that  the documents were’ either re- 613 placed  or  tampered  with, that irregularity  will  not  bY itself supply a ground for holding that the search was  mala fide.  A delay of two months in issuing a notice calling for explanation is also not a ground for holding that the action was taken for a collateral purpose.     It  is not disputed that ’assistance of the, police  may be obtained in the course of a search.  The High Court  has, however, found that the police force employed was excessive. But  we are unable to hold that on the evidence, in  keeping police  officers  present at the time of the search  in  the house of influential businessmen to ensure the protection of the officers and the record, "excessive force was used."     We accordingly see no good grounds to accept the finding recorded  by  the High Court that the manner  in  which  the search  and seizure were conducted "left no room  for  doubt that  the  Income-tax  Officer did not apply  his  mind  and formed  no opinion regarding the relevancy or usefulness  of the  account books and documents for any  proceedings  under the  Income-tax  Act."  The High  Court  accepted  that  the correctness of the opinion actually formed by the Income-tax Officer  .was no.t open to  scrutiny,  in a  writ  petition, but  in  their  view no opinion was in fact  formed  by  the Officer and the search and seizure of documents and books of account  must on that account be held as made in  excess  of the  powers conferred upon the Income-tax Officer  and  mala fide.  For  these  observations  we find  no  warrant.   The Income-tax Officers concerned have sworn by their affidavits that  they did in fact form the requisite opinion  under  s. 132 of the Act and the other evidence and the  circumstances do not justify us in discarding that assertion.     These proceedings were brought before the High Court  by way  of a writ petition under Art.. 226 of the  Constitution before any investigation was made by the Income-tax Officers pursuant to the action taken by them.  In appropriate  eases a  writ  petition may lie challenging the  validity  of  the action  on the ground of absence of power or on a plea  that proceedings  were  taken  maliciously or  for  a  collateral purpose.   But normally the High Court in such a  ease  does not  proceed  to determine merely  on  affidavits  important issues  of  fact especially where serious   allegations   of improper conduct  are  made  against  public  servants.  The Income-tax  Officers who conducted the search asserted  that they acted in good faith in discharge of official duties and not for any collateral purpose. The Commissioner of  Income- tax also denied that he acted at the direction of the Deputy Director  of Inspection and that case was supported  by  the Deputy  Director of Inspection.  If the ,learned  Judges  of the High Court were of the view that the question was one in respect of which an investigation 614 should  be made in a petition for the issue of a writ,  they should  have directed evidence to be taken viva  voce.   The High  Court could not, on the assertions by the partners  of

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the firm which were denied by the Income-tax Officer,  infer that  the premises of M/s. Seth Brothers were  searched  and documents were seized for a collateral purpose, merely  from the fact that many  documents were seized or that on some of the documents seized marks of identification were not put or that the documents belonging to the "sister concerns" of the "Imperial Flour Mills" were seized.     In  our  view the decision of the High  Court  that  the action  of  the Commissioner of Income-tax,  U.P.,  and  the Income-tax Officers who purported to act in pursuance of the letters  of authorisation was mala fide, cannot be  accepted as correct.     Counsel   for   M/s.  Seth   Brothers   contended   that opportunity  may be given to the assessees to lead  evidence viva  voce to prove that the revenue  officers acted  for  a collateral  purpose.  We do not entertain this request since we  propose to remand the case to the High Court  to  decide questions  which have not been decided.  The applicants,  if so  advised,  may  move the High Court  for  leave  to  lead evidence.   It  is for the High Court to decide  whether  at this stage after nearly six years leave to examine witnesses should be granted.     The order passed by the High Court is set aside and  the proceeding  is remanded to the High Court.  The  High  Court will  deal with and dispose of the proceeding  according  to law.  We may observe that counsel for the Income-tax Officer did not invite us to decide the question of the vires of  s. 132  of  the  Income-tax Act on which  the  High  Court  has expressed  no  opinion.  M/s. Seth Brothers  and  the  other petitioners  in the High Court will pay the costs  of  these appeals  in  this  Court.  There will be  one  hearing  fee. Costs in the High Court will be costs in the petition. V.P.S.                   Appeals allowed and case remanded. 615