B.S.CHAUHAN, J. - (1.) THIS writ petition has been filed by the petitioner -partnership Firm for quashing the warrant of authorization dated 20.03.1999 (Annex.6) issued under the provisions of Section 132 of the Income Tax Act, 1961 (hereinafter called 'the Act') and further for directing the respondents to refund the amount of Rs. 3,06,00,000/ - (Rupees Three Crores Six Lakh Only) to the petitioner -firm.
(2.) THE facts and circumstances giving rise to this case as given by the petitioner are that the petitioner -Firm has 12 partners and the Deed of Partnership had been executed on 27.02.1999. The same stood registered with the Registrar of Firms, Allahabad on 6th March, 1999. The petitioner -Firm deposited CDRs/Banker Cheques worth Rs. 3,06,00,000/ - with the District Excise Officer, Rewa on 10th March, 1999 as security to enable the Firm to participate in the auction for allotment of privilege of selling country -made liquor in certain parts of the State of Madhya Pradesh. The said CDRs/Banker Cheques etc. had been seized by the Income Tax authorities on 20th March, 1999. Hence, the present petition. Shri S.K. Garg, learned counsel for the petitioner Firm has submitted that CDRs/Banker Cheques belong to the firm and one Shri Babu Lal, a partner of the Firm, had been authorized under the Partnership Deed itself to participate in the auction for grant of licence for dealing in liquor. The said CDRs/Banker Cheques/Demand Drafts etc. worth Rs. 3,06,00,000/ - had been seized by the Income -tax authorities on 20th March, 1999 in flagrant violation of the provisions of the Act. The search and seizure was illegal, not being in consonance of the provisions of the Act; warrant of authorization had been issued in the name of 'S/Shri Babu Lal Jaiswal, Sheo Kumar Jaiswal, Rajiv Jaiswal and Shishir Jaiswal'; the authorization to search the office of the District Excise Officer, Rewa was not permissible; the said warrant of authorization dated 15.03.1999 had been issued without there being any information in possession of the authority under the Act to form an opinion that the firm was having undisclosed/unaccounted money and, therefore, the search itself was invalid, illegal and if the order of authorization itself was illegal, the entire proceedings stood vitiated. As the CDRs/Banker Cheques etc. were lying in the custody of the District Excise Officer, the proceedings could have been initiated under Section 132A and not under Section 132(1) of the Act itself. The proceedings are void and the petitioners are entitled for refund of the amount and petition deserves to be allowed.
(3.) SHRI Bharat Ji Agrawal, learned Senior Counsel appearing for the Revenue has vehemently opposed the petition submitting that the firm is bogus; it never came into existence; it had no concern with the said FDRs/Banker Cheques etc.; search and seizure had been strictly in accordance with the statutory provisions; no fault can be found with the same; the person concerned had been assessed also under the provisions of Chapter XIV -B; notices under Section 158BC of the Act were issued; none of them turned up; the assessment orders dated 23.03.2001 had been passed against the person concerned; the persons aggrieved/assessees have filed appeals which are pending before the Appellate Authorities. The warrant of authorization which is sought to be quashed is not a part of the record, therefore, the question of its quashing does not arise; what has been challenged in the writ petition is the Panchnama which cannot be a subject matter of the writ jurisdiction nor it can be quashed; petitioner has not approached this Court with clean hands; even if there had been any procedural defect in the search and seizure, then too unless the Court reaches the conclusion that it was not bona fide, the Court should not interfere in its equitable discretionary jurisdiction; there was sufficient material in the possession of the authorities on the basis of which an opinion was objectively formed; there were reasons to believe that the assets had not been and would not be disclosed; the authorization etc. had been strictly in compliance of the statutory provisions. Hence, the petition is liable to be dismissed.;