Om Prakash, J. - (1.) THE petitioner carried on a business in manufacture and sale of carpets as sole proprietor of the concern, Sriram Carpet Industries, Gopiganj, district Varanasi. A search and seizure operation was conducted on July 22, 23, 1987, at the principal place of business, Gopiganj, district Varanasi, at the shopping complex, Maldahia, and at the residential premises, D-64/143, Shastri Nagar, Sigra, Varanasi, of the petitioner. During the search and seizure operation, gold ornaments, silver ornaments, cash, etc., were seized under Section 132(1) of the Income-tax Act, 1961 (briefly "the Act") and a restraint order was passed under Section 132(3) of the Act, for want of verification in respect of the following assets : JUDGEMENT_261_ITR176_1989Html1.htm
(2.) THEREAFTER, the Income-tax Officer, Bhadohi, Varanasi, passed an order under Section 132(5) determining the total tax liability for the assessment years 1981-82, 1983-84, 1984-85, 1987-88 and 1988-89 at Rs. 25,85,988. The value of all the seized assets was determined at Rs. 7,30,683 in the order passed under Section 132(5) of the Act and as the total tax liability aggregating to Rs. 25,85,988 for the aforesaid years exceeded the total value of the seized assets, the Income-tax Officer ordered retention of the entire seized assets. Thereupon, the petitioner filed this writ petition for quashing the order dated November 17, 1987, passed under Section 132(5) of the Act (annexure "25" to the writ petition) and demanding immediate release of the assets seized under Section 132(1) and attached under Section 132(3) also the petitioner prayed for a mandamus that the respondents be directed to return all the books of account seized under Section 132(1) forthwith. Affidavits having been exchanged between the parties, we propose to decide the writ petition finally.
(3.) THE submissions of Sri V.B. Upadhyaya, learned counsel for the petitioner, are : (i) THE authority who issued the warrant of search had no information on the basis of which he could have reason to believe within the meaning of Section 132(1) that the petitioner was in possession of undisclosed assets. (ii) Under Section 132(5), the Income-tax Officer can retain only those assets which have been seized under Section 132(1) and he has no power to retain the assets for which an order has been passed under Section 132(3), after having passed the order under Section 132(5). (iii) Under Section 132(3), the authorised officer can pass a restraint order only in respect of the undisclosed assets and no such order can be passed simply to make an investigation whether a given asset is disclosed or undisclosed. (iv) THE books of account, having been seized under Section 132(1), are liable to be returned, as they cannot be retained after the expiry of 180 days, without valid approval of the Commissioner within the meaning of Section 132(8). Sri Upadhyaya vehemently pressed that learned standing counsel be asked to produce the record to show the information having been received by the Department. His simple submission is that since the petitioner denied that there was valid information with the Department, it is for the respondents to show that there was information within the meaning of Section 132(1) with the authority, who issued the warrant of search. The question is whether the respondents can be called upon to disclose information, simply because it is denied by the petitioner that there was valid information with the Department. Ordinarily, when the existence of a fact is denied by a party, the onus will shift to the other party to prove that the fact or the state of things, alleged to have existed, in fact, existed but this ordinary rule does not fit in the scheme of Section 132 of the Act. A search, either of somebody's person or premises, is a serious violation of the right of privacy which is a very valuable right in a civilized society. Keeping all this in view, power to issue a warrant of search has been conferred by the statute under Section 132(1) only on senior authorities of the Department and it has been impressed upon the authorities, so empowered, time and again, that warrant of search should not be issued in a casual way, and that before issuing the warrant, the authorities must assure and reassure themselves of the existence of valid information that the person, whose premises are sought to be searched, is in possession of undisclosed assets. There is no averment in this case that the Department has given a go-by to this principle and that the warrant of search had been issued against the petitioner without any thought or caution or due to any mala fides or animosity against the petitioner. The petitioner has given no basis for the averment that there was no valid information in the possession of the Director of Inspection, who issued the warrant of search. This being so, mere denial is not enough and the petitioner, in whose knowledge the fact specially lies whether all his assets are fully disclosed or not, should have supported the denial with cogent material. The writ petition was filed on December 7, 1987, that is, after the order under Section 132(5) was passed on November 17, 1987. The Income-tax Officer has already set out the details of the undisclosed assets in the said order and, therefore, it became easier for the petitioner to show that the assets said to be undisclosed in the order passed under Section 132(5) had, in fact, been disclosed. There is no precise averment and no supporting material in this behalf. On these facts, merely on the basis of denial of the petitioner, we do not consider it proper to call upon the respondents to disclose the information they received for having acted under Section 132(1).;