T.U.MEHTA, J. -
(1.)AS per authorisation issued by the respondent No. 1, who is Commissioner of Income -tax, Gujarat -II, under section 132 of the Income -tax Act, 1961, hereinafter referred to as 'the Act', the respondent No. 3, V.C. Shah, who is an Income -tax Officer and his party proceeded to the village, Nani Daman, and began the search of the business as well as residential premises of the petitioner, Bhagwandas Narayandas, on 10th July, 1969. While the search was in progress, there was some commotion created by some local people with the result that the search remained incomplete and was subsequently completed on 26th August, 1969. Certain articles including case of Rs. 59,000 and some fixed deposit receipts as well as ornaments were seized under a panchnama. Thereafter, on 29th August, 1969, a notice contemplated by rule 112A of the Income -tax Rules, 1962 (hereinafter referred to as 'the rules'), was issued allowing the petitioner an opportunity to explain the nature of the possession and source of the acquisition of the currency of Rs. 59,000. After the petitioner offered his explanation, the respondent No. 3, who is also an Income -tax Officer, passed the order contemplated by section 132(5) of the Act, determining the total income of the petitioner from undisclosed source at Rs. 2,64,500. For the tax assessed on this account, the cash of Rs. 59,000 which was seized, was appropriated. Other documents and valuable things seized during the course of the search have been retained by the department.
(2.)BEING aggrieved with this, the petitioner has now approached this court, inter alia, praying for a writ of mandamus or any other appropriate writ or direction or order directing the respondents to hand over to the petitioner the sum of Rs. 59,000 and fixed deposit receipts which have been attached during the course of the search. One of the prayers of the petitioner is for obtaining declaration that section 132 of the Act is ultra vires of the Constitution of India. But in view of the decision given by this court in Ramjibhai Kalidas v. I.G. Desai, Income -tax Officer : 80ITR721(Guj) this question is not agitated.
Shri Bhatt, who appeared on behalf of the petitioner, raised only the following four points during the course of hearing of this petition :
(1) Notice found at exhibit C and issued under rule 112A of the Rules is illegal inasmuch as it is issued beyond the period of 15 days from the date of the seizure, which, according to the petitioner, was made on July 10, 1969, and not on August 26, 1969, as contended by the department.
(2) Even the eventual order passed by the concerned Income -tax Officer under the provisions of sub -section (5) of section 132 of the Act on 22nd November, 1969, is beyond the period of 90 days from the date of the seizure, which is, as said above, according to the petitioner, 10th July, 1969.
(3) The department has not given any show -cause notice as contemplated by rule 112A of the Rules with regard to the fixed deposit receipts and documents of title relating to immovable properties, which were seized during the course of the search and, therefore, the retention of these documents by the department is illegal.
(4) The seizure carried out on 26th August, 1969, requires fresh authorisation in view of the fact that the authorisation issued on July, 1969, had already served its purpose by the search and seizure made on July 10, 1969, and, therefore, the cash amount of Rs. 59,000 and the fixed deposit receipts which have been seized on 26th August, 1969, cannot be retained by the department.
(3.)SINCE these are the only four points, which are raised on behalf of the petitioner, during the course of hearing of this petition, we concentrate our attention only on these points.