V.K.Singhal, J. - (1.) THE only dispute in the present writ petition is with regard to the seizure of 23 books of account by the authorised officer of the Income-tax Department on September 20, 1989. A panchnama (annexure "A-1") was prepared and signed by the authorised officer, the witnesses and the petitioner.
(2.) ACCORDING to the list of inventory of account books attached with the panchnama against the description of the account books seized, the period to which they pertain has been written in most of the cases and in few cases it is not mentioned as to which period they pertain to. The period mentioned started from April 1, 1981, and the said books are up to December 31, 1986. The books are as bulky as containing 193 pages (nakkalbai) and as thin as containing 9 pages of (hathbali). The facts of the case are that the residential premises of the petitioner were searched on September 14, 1989, and the list of books was prepared. The said books were left in the premises searched and it was sealed. The search was resumed on September 20, 1989, and the panchanama was prepared, which was signed by the authorised officers as well as the witnesses, Shri Surendra Kumar and Arjun Singh. The respondents have stated in the reply that the panchanama of September 14, 1989, was prepared by the authorised officers and the signatures of Surendra Kumar Sharma and Ramesh Chand Sharma as witnesses were obtained. The claim of the petitioner is that the books of account which were seized on September 20, 1989, for which panchanama was prepared on September 20, 1989, and a copy of which was delivered to the petitioner, the said books of account have not been made available for inspection, so that the petitioner could have explained in respect of the various entries for which notices have been issued and for which the direction of inspection were given by this court. The file of the Income-tax Department was called for in which there is a panchnama of September 14, 1989, with the list of inventory of account books seized numbering 11 (eleven) for the period from November 18, 1982, to November 12, 1985. The panchnama of these 23 books of account dated September 14, 1989, was not available on file though the list of inventory of account books found/seized is dated September 14, 1989, and the panchnama was prepared on September 20, 1989. In the reply it has been stated by the respondent, it appears that annexure "A-1" showing seizure of books of account, inventory and panchnama of which were prepared on September 14, 1989, and books were left with the petitioner were utilised for preparing seizure memo on September 20, 1989, without physically verifying the books of account which were taken away/removed by the petitioner, may be in collusion with any member of the raiding party, whereas the other panchnamas and seizure memos were prepared on September 20, 1989, itself. Thus, it appears that the books of account mentioned in annexure "A-1" were missing right from that time and that was the reason that the Assessing Officer at Alwar reported to the Deputy Commissioner of Income-tax, Alwar, on December 19, 1989, that the seized material mentioned in annexure "A-1" was not handed over to him by the Additional Director of Income-tax, staff concerned though the then Additional Director of Income-tax (Investigation)-II, who was in charge of the search operation, who prepared the appraisal report and handed over the same along with the other seized material to the Assessing Officer at Alwar, on December 8, 1989. The Deputy Commissioner of Income-tax, Alwar Range, Alwar, in turn reported the matter to the Commissioner of Income-tax as well as the Deputy Director of Income-tax. The late Shri A.K. Fotedar was then acting as the Deputy Director of Income-tax (Investigation), Jaipur, as the regular incumbent was on earned leave. It is pertinent to mention here that the alleged seizure and disappearance of books of account mentioned in annexure-A-1 of panchnama, dated September 14, 1989, is a matter of vigilance scrutiny and the Directorate of Income-tax (Investigation), Ahmedabad, and the Directorate of Income-tax (Vigilance), New Delhi, are seized of the matter as it was already referred and subjected to a thorough vigilance enquiry. The respondent recorded the statement on April 22, 1991, and in reply to questions Nos. 10 and 11 it was stated that 23 books of account were seized and those books were carried by the Income-tax Department on September 20, 1989, with them. The statement of Surendra Sharma was recorded on July 18, 1991, and he has given the reply to question No. 6 that the 23 books of account were found on September 14, 1989, and were sealed in a room. The said room was opened in their presence on September 20, 1989, and the officers of the Income-tax Department have taken the seized records with them. The statement of Arjun Singh was recorded on August 6, 1991, and he has stated that he has gone to the house of Banke Bihari Lal Agarwal after the proceedings were started and he is not having the full knowledge of the search and seizure. It was further stated that because he has reached late on September 20, 1989, he cannot say as to whether the 23 books seized were carried by the Department or not. It was further stated that he remembered that the Income-tax Department has carried one bundle containing the books. He cannot say whether it contained the 23 books seized as per annexure "A-1" or other books or how many books were there.
(3.) THE witness of September 14, 1989, Ramesh Chand Sharma, has stated that the jewellery, cash, books of account, note books, etc., were sealed in a room and he has put his signature on the seal dated September 14, 1989. THE said items were not carried by the Departmental officials on September 14, 1989, and were put in a room after sealing it. The submission on behalf of the respondent is that the assessments have been framed for the assessment years 1988-89, 1989-90 and 1990-91 against which even the appeals have been preferred and decided. It is submitted that the books of account seized under panchnama A-1 has no relevance to the years of assessment and that it may be the petitioner himself, who is responsible for removing the books even on the day of seizure. I have considered over the matter. From a perusal of the file produced by the respondent it is evident that the inspector of the Department who has taken delivery of the seized records has put a note on the panchnama on December 8, 1989, that the account books as per annexure "A-1" were not received. This makes it clear that the account books were not handed over to the Assessing Officer (Assistant Commissioner of Income-tax, Alwar). This fact is further corroborated by the order passed under Section132(5) of the Income-tax Act, dated January 17, 1990, in which in paragraph 5 it is mentioned "as per panchnama dated September 20, 1989, 23 items of the books of account have been shown as seized from the residence of Shri Banke Bihari Lal Agarwal as per annexure "A-1". However, no such books of account from serial Nos. 1 to 23 as per annexure "A-1" have been handed over to me by the Assistant Director of Income-tax (Investigation)-II, for scrutiny. I am, therefore, passing the order without considering the books of account mentioned in annexure-A-1". ;