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Search & seizure (Provisions up to issuance of warrant)

An individual can do everything unless forbidden by Law; whereas a public servant cannot do anything unless authorized by Law It is important for the public servant to understand the importance of due authorization. Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to privacy is implicit in the fundamental right to life and liberty guaranteed to the citizens by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own and his family.
Again article 19(1) (g) of the Constitution of India guarantees “all citizens shall have the right to practice any profession, or to carry on any occupation, trade or business” this fundamental right is not violated by the provisions of section 132[1974]93 ITR 505 (SC). It is not only the source and legitimacy of unusually large sum of money, but also that such a large amount is being carried for a legitimate purpose has to be justified. To ensure that such money is not intended for commission of a crime or an offense, verification/seizure may be warranted [2010] 186 Taxman 305 (SC). Section 132 is a self contained, comprehensive and procedural section and it does not confer any arbitrary authority.
Before a warrant of authorization (warrant) is issued to conduct a search utmost care is taken by the competent authority in consequence of information in his possession, that the competent authority has a “reason to belief” and further in some circumstances has a “reason to suspect” to issue a warrant.
Let us try to understand the provisions relating to the search and seizure in three broad parts. These are 1st Part: Pre operation, 2nd Part: Operation and Pre Assessment and 3rd Part: Assessment.
In first part we will see the provisions up to issuance of warrant. 

Who may authorize search?:

PDGIT/PCCIT/DGIT/CCIT/PDIT/PCIT/DIT/CIT/Addl DIT/Addl CIT/JDIT/JCIT are authorized to issue warrant (“Issuing Authority”) In view of 4th Proviso to section 132(1) unless empowered by CBDT no authorization shall be issued by Addl DIT/Addl CIT/JDIT/JCIT on or after 01/10/2009. CBDT vide Notification No. SO 2879 (E) dated 11/11/2009 has empowered all the Addl DIT/JDIT working under DGIT (Investigation) and DGIT(Intelligence) to issue warrant u/s 132(1).
Under what circumstances “Issuing Authority” may authorize search?:

When the “Issuing Authority” in consequence of information in his possession, has “reason to believe” that—
(a) a person to whom a summons u/s 131(1) of the Income Tax Act, 1961(the Act) or a notice u/s 142(1) of the Act was issued to produce any books of account or other documents has failed to produce such books of account/other documents as required by such summons or notice, or
(b) a person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce any books of account/other documents which will be useful for, or relevant to, any proceeding under the Act, or
( c ) any person is in possession of any money, bullion, jewellery or other valuable article or thing (“undisclosed property”) and such “undisclosed property” represents either wholly or partly income or property which has not been, or would not be, disclosed for the purposes of the Act.
then, - the “Issuing Authority” may authorize search.

Who may be authorized?
(ii) Addl DIT/Addl CIT/JDIT/JCIT may authorize DDIT/DCIT/ADIT/ACIT/ITO (Authorized Officer).

Following special powers are given to “issuing authorities” who are not from the Directorate of Investigation to supplement the operation of search to safeguard the interest of revenue and to cover the uncovered area.
When “issuing Authority” is competent to issue warrant even if he does not have jurisdiction over the person searched?
If the jurisdiction of the “search area” is with any PCCIT/CCIT/PCIT/CIT but such PCCIT/CCIT/PCIT/CIT has no jurisdiction over the person then such PCCIT/CCIT/PCIT/CIT shall be competent to issue warrant where he has “reason to believe” that any delay in getting the authorization from the PCCIT/CCIT/PCIT/CIT having jurisdiction over such person may be prejudicial to the interests of the revenue [Refer 1st proviso to section 132(1)].

When “issuing Authority” may authorize “Authorized Officer” to take action in ‘area’ not covered?
Where any PCCIT/CCIT/PCIT/CIT in consequence of information in his possession, has “reason to suspect” that any books of account, or “undisclosed property” in respect of which an officer has been authorized by the PDGIT/DGIT/PDIT/DIT or PCCIT/CCIT/PCIT/CIT/Addl DIT/Addl CIT/JDIT/JCIT to take action u/s 132(1) is kept in “search area” not mentioned in the authorization u/s 132(1), such PCCIT/CCIT/PCIT/CIT may authorize the said officer to take action u/s 132(1) in respect of such “search area”[Refer section 132(1A)]. “Reason to suspect” is about ‘area’ in which “undisclosed property“is kept.  

Forms of warrant of authorization
The authorization u/s 132(1) (other than an authorization under the proviso thereto) by the DGIT/CCIT/DIT/CIT/ any such DDIT/DCIT as is empowered by the Board in this behalf shall be in Form No. 45. [Refer Rule 112(2) (a). PDGIT/PCCIT/PDIT/PCIT is yet to be inserted in Rule 112 and erstwhile designation of DDIT/DCIT should be read as Addl DIT/Addl CIT/JDIT/JCIT] The authorization under the proviso to section 132(1) by a CCIT/CIT shall be in Form No. 45A.. [Refer Rule 112(2) (b). PCCIT/PCIT is yet to be inserted in Rule 112]. The authorization u/s 132(1A) by a CCIT/CIT shall be in Form No. 45B [PCCIT/PCIT is yet to be inserted in Rule 112].

Every authorization referred to in Rule 112(2) shall be in writing under the signature of the officer issuing the authorization and shall bear his seal [Refer Rule 112(2A)]. It shall not be necessary to issue a warrant u/s 132 separately in the name of each person [Refer section 292CC].
The provisions of the Cr PC relating to searches and seizure shall apply to searches and seizure u/s 132(1)/132(1A) [Refer section 132(13)] However, limitations prescribed by section 165 of Cr PC shall not apply [1969] 74 ITR 836 (SC).

ITKP on January 25 2015 08:43:01

An individual can do everything unless forbidden by Law; whereas a public servant cannot do anything unless authorized by Law.
-- great lines sir....

ITKP on March 30 2015 09:45:05

Now each comment would be sent to the author as Personal Message.

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