Amitava Lala,J. - (1.) This writ petition is made challenging the search and seizure carried out by the income-tax authority on October 16, 2001, and for withholding books, documents and papers seized in the course of such search and seizure. The petitioners annexed panchanama of search and seizure which includes warrant and other reference, etc., as well as list of inventory of the jewellery, bank accounts and other documents. According to the writ petitioner, under Section 132 of the Income-tax Act, a provision is made for search and seizure. Dr. Debi Prasad Pal, and Mr. Ajit Kr. Panja, learned senior counsel appearing in support of the petitioners, contended that as per Sub-section (9A) of Section 132, the authorised officer making the search and seizure has no jurisdiction to keep the books of account or other documents or assets seized for more than a period of fifteen days of such seizure and they are to be handed over by the authorised officer to the Income-tax Officer having jurisdiction within such period and thereupon the powers exercisable by the authorised officer under Sub-section (8) or Sub-section (9) shall be exercisable by such Income-tax Officer. If the sub-section under this section is read in the context of other parts of the Act in which the authority or power of the Income-tax/Assessing Officer is given it will be seen that after the period of fifteen days the Income-tax/Assessing Officer automatically becomes an authorised officer. Therefore, there is very little scope for argument on the part of the authority for withholding such documents beyond the period. Dr. Pal relied upon a judgment of the Supreme Court reported in CIT v. K. V. Krishnaswamy Naidu and Co. , whereunder by a cryptic order, the Supreme Court accepted the decision of the Madras High Court Division Bench reported in K. V. Krishnaswamy Naidu and Co. v. CIT [1987] 166 ITR 244. Upon going through the judgment of the Madras High Court it appears that the retention of the seized documents beyond fifteen days by the officer other than the Income-tax Officer having jurisdiction over the assessee cannot be held to be valid and was found to be without jurisdiction. Even the period cannot be extended.
(2.) During the course of argument an incidental question arose whether the authority concerned also opposing the petitioner can get copies of the documents or not to which Mr. Dipak Kr. Shome, learned senior counsel appearing for the authority, contended before this court that there is a clear provision to apply for a copy under Sub-section (9) of Section 132 and if the application is made the authority will supply the certified photocopies of the same. Since this question is an incidental one and the main question is a question of law, retention of the matter for the future by giving directions for filing affidavits will be a futile attempt. Therefore, even at the motion stage, the court found it necessary to dispose of the matter either way finally upon visualising the scope and ambit of law regarding the same. However, it is recorded here-under that since the respondents did not use any affidavit the allegations made against them seem to be admitted.
(3.) According to Mr. Shome, the acceptance of the judgment of the Madras High Court by the Supreme Court as on January 22,1998, is really acceptance of the legal position prior to the amendment of the Income-tax Act and by introduction of Chapter XIV-B in respect of block search and seizure with effect from June 1, 2001, the earlier legal position was virtually given a go-by. Therefore, the judgment as passed by the Supreme Court in agreement with the Madras High Court judgment is no longer a good law. I have gone through such Chapter and I find that a special procedure for assessment of search cases are not only defined but also various modes were introduced therein by way of an amendment. A Division Bench judgment of the Allahabad High Court which is reported in Digvijay Chemicals Ltd. v. Asst, CIT has been cited in the court. The relevant point has been considerably dealt with therein. The ratio of the judgment is that the purpose of Section 132(9A) of the Income-tax Act, 1961, is to help the Assessing Officer to make a speedy assessment and is not for the benefit of the assessee. Even, if the seized materials were handed over beyond the period of fifteen days, it cannot be said to be not looked into by the Income-tax/Assessing Officer. Therefore, it appears that the period so fixed under the statute is not mandatory but directory directing the departmental authority to expedite the process. If such period of fifteen days seems to be directory the period at best can be construed as a reasonable period to come to a conclusion. Moreover, if the sub-section is read with the newly introduced Chapter as aforesaid it seems that the period of search and seizure can be taken for a period of two years. Therefore, merely handing over the documents even by the authorised officer to the Assessing Officer within or outside the period of fifteen days does not help an assessee in any manner whatsoever in getting any relief. If the assessee applies for a copy in accordance with law he will be entitled for the same for which jurisdiction of the high prerogative writ cannot be misused.;