M.R.SHARMA,J. - (1.) THE petitioner is a practising advocate of this court. On the morning of October 17, 1974, at about 8 a. m. when he was working in his office, respondents Nos. 2 and 3 accompanied by several other officials of the income-tax department and some police constables raided house No, 25, Sector 3-A, Chandigarh, which is stated to belong to the petitioner, his sons and grandson. Respondents Nos. 2 and 3 showed him an order signed by respondent No. 1 authorising them to conduct a search of the house under Section 132 of the Income-tax Act, 1961 (hereinafter called " the Act " ). The petitioner allowed this house to be searched upon which respondents Nos. 2 and 3 recovered and seized the articles mentioned in the list marked as annexure " P-1 " accompanying the petition. Some jewellery was also found from the premises, the details of which are mentioned in a list attached to the petition and marked as annexure " P-2". This list is signed by the Authorised Officer arid contains the following note : "the above items of jewellery have been returned to Shri Anand Swaroop, advocate, and thus have not been seized under telephonic instructions of Shri J. S. Dulat, I. A. C. , Chandigarh. "
(2.) ON October 24, 1974, Miss R. K. Chahal, Income-tax Officer, Chandigarh, who was not the Authorised Officer within the meaning of Section 132 of the Act for the purpose of a search of the premises of the petitioner, addressed a letter to him mentioning therein the cash, jewellery and other articles found at his premises and calling upon him to explain the sources of acquisition of the assets, both seized and unseized. It was also mentioned therein that if he failed to offer a valid explanation or to produce evidence on which he might rely, it shall be presumed that he had nothing to say in the matter. On November 23, 1974, the petitioner replied to this letter indicating the manner in which he came to possess these assets. In this letter, the petitioner particularly mentioned that from the year ending 31st March, 1958, till the year ending March, 1974, he had been assessed to a net income of Rs. four lakhs fifty-six thousand eight hundred and eight. Towards the end, he mentioned : " I do not know what I have to explain. Any other question put to me can be answered willingly," Some further correspondence followed on the subject which culminated in the passing of a final order against the petitioner under Section 132 (5) of the Act under which tax liability of the petitioner from assessment years 1966-67 to 1975-76 was enhanced to Rs, 1,34,733. Since the total exceeded the value of the total assets seized, they were ordered to be retained.
(3.) THE petitioner has challenged the search of his house, seizure of articles therefrom and the order passed under Section 132 (5) of the Act against him on the grounds that there could possibly have been no information with the Commissioner of Income-tax for coming to the necessary belief under Section 132 (1), Clause, (a), (b) or (c) of the Act. It was also averred that the Authorised Officer did not apply his mind at the time when he seized the assets. Reliance in this connection has been placed on a judgment rendered in C. W. No. 150 of 1975, H. L. Sibal v. Commissioner of Income-tax, [1975] 101 ITR 112 (Punj ). decided by us on July 15, 1975. In that case, we held as under; (a) The existence of necessary facts on the basis of which the Commissioner of Income-tax could have formed the belief under Clause (a), (b) or (c) of Sub-section (1) of Section 132 was a condition precedent for taking action under that section. (b) It was incumbent on the Commissioner of Income-tax to record these reasons in writing before authorising a search. (c) The Commissioner of Income-tax was not empowered to merely change his opinion on the basis of information already in his possession. (d) The Authorised Officer was also duty-bound to apply his own independent mind before seizing the assets found on the premises as a result of the search made. (e) The seizure made at the intervention of an outside agency was no seizure in the eyes of law. (f) In the absence of a valid seizure of the assets action under Section 132 (5) of the Act cannot be taken against an assessee. ;