In the present case, in September 2007 the search was carried out in the premises of Dr. Yogi Raj Sharma. The document Annexure RJ-1 was seized by the respondents. At the relevant time petitioner no. 1 was the Chief Health Secretary and this fact was within the knowledge of the respondents, but why the search was conducted on 30.5.2008 after a period of near about 9 months, there is no explanation in this regard. The document Annexure RJ-1 was seized from the premises of Dr. Yogi Raj Sharma but until and unless there is corroborating evidence the respondents could not have formed the basis of issuing warrant of authorization. It appears that because of the allotment of house to respondent no.4, there was some annoyance of the authorities and as soon as on 20.5.2008 the house was got allotted by Chief Minister, on 28.5.2008 warrant of authorization was issued and on 30.5.2008 search was conducted. If there was some material with the Department that the petitioners had purchased some house or land property, then there could have been definite evidence in this regard, but for a period of 8 months no information was collected and all of a sudden the warrant of authorization was issued. From the perusal of panchnama prepared during seizure it appears that no objectionable document or undisclosed property was found except those which were declared in the earlier return. There is no other evidence available on record that the document Annexure RJ-1 relates to the petitioner and the word ‘ch’ of which correctness is disputed by the petitioner indicates to the petitioner. In absence of any cogent reasons in the present matter warrant of authorization could not have been issued, as has been held by the aforesaid judgments. Issuance of warrant of authorization is a serious action and for this authorization officer should have recorded his satisfaction. Though normally this Court is not looking to the reasons of satisfaction, but in the present case it appears that the warrant of authorization was issued merely on hypothecated grounds, which is not sustainable under the law.
A Division Bench of this Court in Gaya Prasad Pathak Vs. Assistant Commissioner of Income Tax and others (2007) 290 ITR 128 (MP) has considered that in the assessment proceedings the authorities have no power to consider the validity of authorization under section 132(1) of the Act and the remedy available to the petitioners is by way of filing writ petition.
In the present case, we have examined the entire proceedings, satisfaction note, the document Annexure RJ- 1, which is the basis for issuance of warrant of authorization and ultimately the seizure memo and find that the entire action which was initiated and taken was based on without any sufficient ground or material and it appears that because of dispute in respect of allotment of house, the respondents could get an opportunity to issue warrant of authorization, resultantly search in the premises of petitioners as conducted.
In view of aforesaid, the action of the respondents cannot be sustained under the law and accordingly this petition is allowed and the issuance of warrant of authorization and consequent search and seizure proceedings are hereby quashed.
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No. 13833 of 2010
1. Rajesh Rajora,
2. Smt Sameeta Rajora
Vs
1. Union of India,
2. The Chief Commissioner of Income-tax
3. The Commissioner of Income-tax
4. The Director Of Income-tax (Investigation)
5. The Assistant Director of Income-tax (Investigation)
6. The Assistant Commissioner of Income-tax Circle
7. The Income Tax Officer
JUDGEMENT
