This presentation is useful for practicing chartered accountants, income tax advocates and business men.

1. CA Pardeep Gandotra
OJ&K Branch of NIRC of ICAI
On 20th
February
Organized By J&K Branch of NIRC Of ICAI
At K.C. Residency Jammu on 28th
Day of January, 2014.
On

2. Section 132 Overview
Section 132 confers wide powers relating to search and
seizure on Income Tax Authorities and provisions of Code
of Criminal procedure shall apply ITO v Seth Bros. [1969]
74 ITR 836 (SC)

3. Section 132 Overview
The Director General or Director or the Chief Commissioner or
commissioner or empowered addl or Joint Director / Comm
having reason to believe that :
any person to whom summons have been issued or might be
issued will not or would not produce the documents
Or
any person is in possession of any money, bullion, jewellery or
other valuable article or thing and such money, bullion,
jewellery or other valuable article or thing represents either
wholly or partly income or property [which has not been, or
would not be, disclosed can authorise any officer subbordinate
to him not below the rank of Income Tax Officer
to

4. Section 132 Overviewenter and search any [building, place, vessel, vehicle or
aircraft] where he has reason to suspect that such
books of account, other document, money, bullion,
jewellery or other valuable article or thing are kept;
break open the lock where the keys thereof are not
available;
search any person who has got out of, or is about to
get into, or is in the building, place, vessel, vehicle or
aircraft.
seize any such books of account, other documents,
money, bullion, jewellery or other valuable article or
thing found as a result of such search

5. Section 132 Overview
make a note or an inventory of any such money,
bullion, jewellery or other valuable article or thing
Requisition the services of any police officer or any
officer of the Central Government or both to assist
him.
examine on oath any person who is found to be in
possession or control of any books of account,
documents, money, bullion, jewellery or other
valuable article or thing

6. Precautions to avoid Search and seizure.
1)Correct declarations of all details of taxable and
exempted income and wealth in income Tax and wealth
Tax return.
2) Timely compliance with summons , notices and other
matters related to assessment and collection.
3) Discharging statutory obligations in time
4) Preservation of important vouchers and other evidence
for the acquisition of assets.
5) Maintenance of register recording contents of lockers
and declaration from owner if assessee is the custodian.

7. Do’s and don’ts
Do’s
1. Panchanama-Copy must be obtained immediately.
2. Inventory-Copy must be obtained.
3. Copies of documents seized-Make application to furnish
the copies seized.
4. Copies of statements-Make application to furnish copies
5. Factual error-Valuing stock-Inventory etc- Write
immediately to the concerned Officials who have
conducted the search or seizure

8. Do’s and don’ts
6. Goods of Perishable nature if kept under prohibitory
order-Ask to release or sell –If loss is occurred the
department is responsible.
7. Adjustment of cash-Ask for adjustment against tax
liability.
8. Disposal of assets seized-Release of assets or sell by the
tax department.
9. Damages- File petition for loss due to action of the tax
Officials.

9. Do’s and don’ts
10. Retraction- Within reasonable time before the same
Officials who have taken the statement. If required copy to
higher authorities.
11. If any valuable or documents of third party is seized-
Ask the party concerned to make an application for release
and claiming the ownership.
12. If any documents or statement is proposed to be used
against you, ask for the copies and opportunity for cross
examination of the parties who have given statements.

10. Do’s and don’ts
13. Discuss with consultant possibility of approaching
Settlement Commission advantages and disadvantages.
14. Co-operate with proceedings
Don’ts
1. Goods put under prohibitory order cannot be removed.
2. Never mislead on facts.
3. Don’t try to destroy the documents or books.

11. Taxpayers charter
Every taxpayer is entitled to expect the Income-tax
Department :
- To be fair in deciding tax matters, by providing a right
to be heard and by being objective and impartial in
collecting the taxes that are legitimately due.
To provide quality service
- by settling tax affairs promptly ;
 by keeping personal and private information
furnished to the Department confidential ;


12. Taxpayers charter
by being courteous to the taxpayers.
To assist him in understanding the rights and duties under
the tax laws ;
- in availing of the benefits and concessions due to
him ;
- in getting information and assistance at the enquiry
counters.

13. Taxpayers charter
And in return, the Income-tax Department expects the
taxpayer
- to extend co-operation to tax officials in the matter of
assessment and collection ;
- to voluntarily disclose his correct income and pay the
taxes due ;
- to discharge his statutory obligations in time ;
- to provide true and complete information.

14. Guidelines for seizure of jewellery
In the case of a person not assessed to wealth-tax
Gold jewellery and ornaments
500 gms. per married lady
250 gms per unmarried lady
100 gms per male member of the family
need not be seized

15. Guidelines for seizure of jewellery
(Instruction No. 1916, dated 11 11-5-1994.)
In the case of a wealth-tax assessee ,
 gold, jewellery and ornaments found in excess of the gross
weight declared in the wealth-tax return only need be
seized.

16. Rights and duties of persons
searched
Rights of persons searched
i. To see the warrant of authorisation duly signed and
sealed by the issuing authority.
ii. To verify the identity of each member of the search
party.
iii. To have at least two respectable and independent
residents of the locality as witnesses.

17. Rights of persons searched
iv. To have personal search of all members of the search
party before the start of the search and on conclusion of
the search.
v. To insist on a personal search of females by another
female only with strict regard to decency.
vi. To have a copy of the panchnama together with all the
annexures.
vii. To put his own seals on the packages containing the
seized assets.

18. Rights of persons searched
viii. A woman occupying any apartment etc., to be
searched has the right to withdraw before the search party
enters, if, according to custom, she does not appear in
public.
ix. To call a medical practitioner if he is not well.
x. To have his children permitted to go to school, after
examination of their bags.
xi. To inspect the seals on various receptacles placed in the
course of the search and subsequently reopened by
continuation of the search.

19. Rights of persons searched
xii. To have the facility of having meals etc., at the normal
time.
xiii. To have a copy of any statement before it is used
against him in an assessment or prosecution proceedings.
xiv. To inspect books of account etc. seized or to take
extracts there from in the presence of any of the
authorized officers or any other person empowered in this
behalf.
xv. To make an application objecting to the approval given
by the Commissioner for retention of books and
documents beyond 180 days from the date of the seizure.

20. Duties of the person searched
xvi. To allow free and unhindered ingress into the
premises.
xvii. To see the warrant of authorization and put
signatures on the same.
xviii. To identify all receptacles in which assets or books of
account and documents are kept and to hand over keys of
such receptacles to the authorized Officer.
xix. To identify and explain the ownership of the assets,
books of account and documents found in the premises.

21. Duties of the person searched
xx. To identify every individual in the premises and to
explain their relationship to the person being searched. He
should not mislead by impersonation. If he cheats by
pretending to be some other person or knowingly
substitutes one person for another, it is an offence
punishable under section 416 of the Indian Penal Code.
xxi. Not to allow or encourage the entry of any
unauthorized person into the premises.

22. Duties of the person searched
xxii. Not to remove any article from its place without
notice or knowledge of the Authorised Officer. If he
secretes or destroys any document with the intention of
preventing the same from being produced or used as
evidence before the Court or public servant, he shall be
punishable with imprisonment or fine or both, in
accordance with section 204 of the Indian Penal Code.

23. Duties of the person searched
xxiii. To answer all queries truthfully and to the best of his
knowledge. He should not allow any third party to either
interfere or prompt while his statement is being recorded
by the Authorized Officer. In doing so, he should also keep
in mind that :-
b. If he refuses to answer a question on a subject relevant
to the search operation, he shall be punishable with
imprisonment or fine or both, u/s 179 of the Indian Penal
Code.

24. Duties of the person searched
c. Being legally bound by an oath or affirmation to state
the truth, if he makes a false statement, he shall be
punishable with imprisonment or fine or both u/s 181 of
the Indian Penal Code.
d. Similarly, if he provides evidence which is false and
which he knows or believes to be false, he is liable to be
punished u/s 191 of the Indian Penal Code.

25. Duties of the person searched
i. To affix his signature on the recorded statement,
inventories and the panchnama.
ii. To ensure that peace is maintained throughout the
duration of the search, and to cooperate with the search
party in all respects so that the search action is concluded
at the earliest and in a peaceful manner.
iii. Similar co-operation should be extended even after the
search action is over, so as to enable the Authorised
Officer to complete necessary follow-up investigations at
the earliest.

26. Other guidelines
With a view to focus on high revenue yielding cases and to
make the optimum use of manpower, the Board has
decided that officers deployed in the Investigation Wing
should restructure their activities. They should henceforth
strictly adhere to the following guidelines :
(i) Searches should be carried out only in cases where
there is credible evidence to indicate substantial
unaccounted income/assets in relation to the tax normally
paid by the assessee or where the expected concealment is
more than Rs. 1 crore;

27. Other guidelines
ii) Search operation will also be mounted when there is
evidence of hidden unaccounted assets arising out of a
conspiracy to cause public harm, terrorism, smuggling,
narcotics, fraud, gangsterism, fake currency, fake stamp
papers and such other manifestations;
 (iii) Tax payers who are professionals of excellence
should not be searched without there being compelling
evidence and confirmation of substantial tax evasion.

28. Other guidelines
Henceforth, search operations shall be authorised only by
the concerned DGIT (Inv.), who will be accountable for
the action initiated by the officers working under him. He
should also ensure that all the work relating to search and
seizure, like post-search inquiries, preparation of appraisal
report and handing over of seized books of account, etc.,
should be completed by the Investigation Wing within a
period of 60 days from the date on which the last of the
authorisations for search was executed -
Instruction : No. 7/2003, dated 30-7-2003.

29. Judicial Decisions
The specified officer must before taking such action, record
his reason to believe that the case is fit for such action.
‘Reason to believe’ means that the officer has faith or accepts
a fact to exist. Belief must be genuine and not a mere
pretence and has to be held in good faith and not a reason to
suspect. [ito v Lakshman Mewal Das (1976) 103 itr 437 (SC)

30. Only the High Courts and the Supreme Court have
the jurisdiction to call for and look into the reasons
recorded to decide whether the issue of the search
warrant was called for.
“Illegality of a search does not vitiate the evidence
collected during such illegal search.”
Dr. Partap Singh v Director of Enforcement (1985) 155
itr 166 (SC)

31. Pooran Mal v. DIT (1974) 93 ITR 505 (SC)
Provision of search and seizure in section 132 do not
violate the fundamental rights under Constitution of
India. Restrictions placed by any of the provisions of
section 132, section 132A or Rule 112A are reasonable
restrictions on the freedom under these Articles.
Evidence obtained in search made in contravention
of provisions can be used, unless there is an express
or necessarily implied prohibition in the
Constitution or other law, evidence obtained as
result of illegal search or seizure is not liable to
be rejected.

32. Judicial Decisions
Officers have right to use reasonable means to remove
the obstruction or resistance during search and
seizure operations. Matajog Dobey / Nand Ram
Aggarwal v H.C Bhari [1955] 28 itr 941 (SC)

33. Judicial Decisions
S. 271(1)(c) Expl 5 immunity available even if tax not
paid by due date of ROI as there is no time limit
prescribed in the third condition for the payment of
the tax & interest. If the Assessee fulfills the first two
conditions and pays the tax & interest (before the
completion of the assessment), assessee was entitled to
immunity under Explanation 5 to s. 271(1)(c).
Acit VS. M/S Gebilal Kanhaialal HUF (Supreme Court)
Source ITAT online.


34. ITO v. Seth Brothers & Ors. (1969) 74 ITR 836 (SC)
If the action of the officer is challenged, the Officer
concerned must satisfy the court about the regularity of
his action. If the action is maliciously taken or power
under the section is exercised for a collateral
purpose, it is liable to be struck down by the court. If
the conditions for the exercise of the power are not
satisfied, the proceedings are liable to be quashed. But,
where the power is exercised with bonafide intention and
in furtherance of the statutory duties of the tax officer, any
error of judgment on the part of the officers will not vitiate
the exercise of the power.

35. [ S. R. Batliboi & Co v Department
of Income-tax ( Investigation)
(2009) 315 itr 137 (Del)]
Search party does not have access to data
of other clients contained in the laptops
of the Auditor.

36. Vinod Goel v. UOI (2001) 252 ITR 29(P&H)(HC)
(40)
Where survey action u/s 133A was taken at the
business and consequent search u/s 132 was
authorised at the residential premises without
recording independent reasons for satisfaction, the
search was declared illegal.
Dr. Nalini Mahajan and others v. DIT (Inv)(2002)
257 ITR 123 (Delhi)(HC)
Survey operation converted into search and seizure
– No reason given for such conversion, No
independent application of mind –Search and
seizure operation was held to be invalid – Hospital
premises belongs to Trust and not assessee.

37. Prakash V. Sanghvi v. Ramesh G., Major, DDIT
(Inv.) (2013) 356 ITR 426 (Karn) (HC), the court
held that in case of trespassing of assessee’s
property, the delinquent officers may be
prosecuted by a competent Criminal court. The
Act does not invest in the Deputy Director, the
power to have a camp office at the residence of the
assessee and call the assessee's attendance in
connection with proceedings under the Act.
However, warrant issued was held to be valid.

38. DCIT v Mahesh Kumar Agrawal (2003)
262 ITR 338 (Cal) (HC) Before issue of
warrant of authorisation, they record the
satisfaction and reasoning. Court cannot sit
in appeal over the opinion formed.
Existence of materials to be looked into,
Court has to examine whether on such
material a reasonable man can form
opinion. Change in life style of assessee
not a material for purpose of formation
of opinion.

39. Chief Commissioner of Income Tax (CCA), Patna
and others Vs. The State Of Bihar,
The High Court held that the Department was guilty of
violating human rights even though the operations were
conducted in best interest of revenue and good faith.
However, the Court also held, that since the Commission
had, without affording the officials an opportunity of
hearing as to the violation of human rights, called upon
them to explain why monetary compensation be not
awarded and be recoverable from their salary, it had pre-
judged the officials and therefore, this notice had to be
reversed.

40. Sections covered
Section 132 Search and seizure
Section 153A,Assessment in case of search or
requisition
Section 153C Assessment of income of any other
person
Section 271AAA, Penalty where search has been
initiated on or
after the 1st day of June, 2007
Section 271AAB. Penalty where search has been
initiated on or

41. Assessment procedure
During course of search and seizure operation u/s 132(1),
various books of account, documents, valuables like
jewellery, cash etc. are found or seized. Thereafter, on the
basis of such documents and valuables as well as other
information, an appraisal report is made by the ADIT or
DDIT who sends the same to the assessing officer for
assessment purpose. All the files of group after the search
and seizure operation are normally centralized to central
circle under the jurisdiction of a particular assessing officer
for assessment purpose.

42. Assessment procedure
Thereafter, on the basis of seized material and appraisal
report and other information the assessment of six years
preceding the search year are made. The assessment of
the cases where the books of account and the documents
are requisitioned by the ADIT and DDIT are also made for
six years. Such assessments are called post search
assessment made u/s 153A .However, in case of year of
search , the assessment is made u/s 142 (1) of the Income
tax Act 1961 .

43. Appraisal Report.
An appraisal report is a report which contains the
investigation proceedings of the assessee whereas
assessment order is an order passed by the assessing
officer for the purpose of determination of tax liability.
The time limit for the completion of the appraisal report is two
months from the last date of panchnama. Thereafter, the
concerned officer sends the appraisal report along with the
seized material to the assessing officer who starts the
assessment proceedings.

44. Issue of Notice
For the purpose of assessment, notice u/s153A/C is issued
for the purpose of submission of return of income. Such
notices are issued for six assessment years preceding the
financial year in which search was conducted. The time limit
for issue of notice u/s 153A and 153C is not mentioned in
the act. However, the AO should issue the notice within
such period from conclusion of search operation so that
sufficient time is left for assessment.

45. Section 153A
Notice u/s 153A can be issued to the assessee in whose
name warrant is executed or requisition is made for
furnishing of returns for 6 years only under this section.
Section 153C
Notice u/s 153C can be issued on those persons to whom
the books, documents and other valuable found during
search operation belongs and further such documents or
books should be incriminating in nature

46. Return of Income
The assessee shall file six returns of income in pursuance
to notice u/s 153A and 153 C within date specified in such
notice. The return of income in respect of the year of search
is to be filed as per provisions of sec 139.
Time limit for furnishing of
Return
The time limit for furnishing of return is specified in the said
notice as per discretion of AO. Normally, this period varies
between 15 days to 45 days.

47. Extension of Time
Section 153A does not speak specifically about the
extension of time to be granted for filling of return u/s
153A. However, with reference to clause 14 of The
General Clause Act, 1897 which states that where any
power is conferred that unless a different intention
appears, that power may be exercised from time to time.

48. Specific Return Form
There is no specific form for furnishings of such returns.
Such returns are to be furnished as per procedure
applicable for original returns furnished by assessee.
However, a letter can also be filed by the assessee for
treating the original return of income duly filed in pursuance
of notice u/s 153A of income tax act, 1961. But it is always
preferable to furnish returns and not the letters.

49. Time limit for Assessment u/s
153A
The time limit for completion of assessment u/s 153A is
2 years(92CA 3 Years) from the end of financial year in
which the search was initiated.
Time Limit for Assessment U/s
153C
The time limit for completion of assessment u/s 153C is
2 years (92CA 3 Years) or 12 months (92CA 2 Years)
from the end of financial year in which books of account
or documents or assets seized or requisitioned are
handed over to the AO having jurisdiction, whichever is
later.

50. Assessment of other Persons U/S
153C
The assessment of other persons who are not covered
under section 153A but are related to persons covered
under section 153A can also be made by A.O subject to
following conditions
1. The AO must be satisfied that any money, bullion,
jewellery and other valuable article things or books of
accounts or documents seized or requisitioned belong to
such other persons.
2. Such books of accounts or documents or assets seized
or requisitioned should be handed over to the AO having
jurisdiction over such persons.
3. AO shall issue notice to such other persons

51. Books seized don’t belong to third
party.
The word belonging to is very important . The notice
u/s153C should not be issued unless the seized document
belongs to the person on whom such notice is being
issued. The AO cannot assume jurisdiction u/s153C where
books of accounts or other seized document during course
of search do belong to third party.

52. Prior Approval
For passing order u/s 153 A and C , prior approval of
Joint Commissioner or Addl. Commissioner is required .It
should not be routine approval. The joint/addl.
Commissioner should apply his mind before giving his
approval. The assessing officer should mention in body
of the order that permission of the joint/addl.
commissioner has been obtained.

53. Order U/s 127
Order u/s 127 is an order passed by a commissioner of
income tax in respect of transfer of jurisdiction from one
assessing officer to another assessing officer under
different CIT charge. If the assessing officer has issued
notice prior to order u/s 127 such notice shall be null and
void.

54. Verification of Bank
Accounts
All the bank accounts of the group which are found during
the course of search operation are examined by the
assessing officers to find out whether such bank accounts
are duly reflected in the regular books of account of the
respective account holder of the group. During the course
of search and seizure prohibitory order is imposed on
such bank accounts and such prohibitory order is
withdrawn only after verifying that such bank accounts are
duly recorded in the regular books of accounts.

55. Section 271AAA
[Penalty where search has been initiated.
(1) The Assessing Officer may, notwithstanding anything
contained in any other provisions of this Act, direct that, in
a case where search has been initiated under section 132
on or after the 1st day of June, 2007 [but before the 1st
day of July, 2012], the assessee shall pay by way of
penalty, in addition to tax, if any, payable by him, a sum
computed at the rate of ten per cent. of the undisclosed
income of the specified previous year.

56. Section 271AAA
(2) Nothing contained in sub-section (1) shall apply if the
assessee,—
(i) in the course of the search, in a statement under sub-
section (4) of section 132, admits the undisclosed
income and specifies the manner in which such income
has been derived;
(ii) substantiates the manner in which the undisclosed
income was derived; and
(iii) pays the tax, together with interest, if any, in respect
of the undisclosed income.

57. Section 271AAA
(3) No penalty under the provisions of clause (c) of
sub-section (1) of section 271 shall be imposed upon
the assessee in respect of the undisclosed income
referred to in sub-section (1).
(4) The provisions of sections 274 and 275 shall, so far
as may be, apply in relation to the penalty referred to in
this section.

58. Section 271AAA
Explanation : For the purposes of this section,—
(a) "undisclosed income" means—
(i) any income of the specified previous year
represented, either wholly or partly, by any money,
bullion, jewellery or other valuable article or thing or any
entry in the books of account or other documents or
transactions found in the course of a search under
section 132, which has—
(A) not been recorded on or before the date of search in
the books of account or other documents maintained in
the normal course relating to such previous year; or

59. Section 271AAA
(B) otherwise not been disclosed to the Chief
Commissioner or Commissioner before the date of the
search; or
(ii) any income of the specified previous year
represented, either wholly or partly, by any entry in
respect of an expense recorded in the books of account
or other documents maintained in the normal course
relating to the specified previous year which is found to
be false and would not have been found to be so had
the search not been conducted;

60. Section 271AAA
(b) "specified previous year" means the previous year
—
(i) which has ended before the date of search, but the
date of filing the return of income under sub-section
(1) of section 139 for such year has not expired
before the date of search and the assessee has not
furnished the return of income for the previous year
before the said date; or
(ii) in which search was conducted.]

61. Section 271AAB
[271AAB. Penalty where search has been initiated.
(1) The Assessing Officer may, notwithstanding anything
contained in any other provisions of this Act, direct that,
in a case where search has been initiated under section 132
on or after the 1st day of July, 2012, the assessee shall pay
by way of penalty, in addition to tax, if any, payable by
him,––
(a) a sum computed at the rate of ten per cent of the
undisclosed income of the specified previous year, if such
assessee—

62. Section 271AAB
(i) in the course of the search, in a statement under sub-
section (4) of section 132, admits the undisclosed income
and specifies the manner in which such income has been
derived;
(ii) substantiates the manner in which the undisclosed
income was derived; and
(iii) on or before the specified date––
(A) pays the tax, together with interest, if any, in respect
of the undisclosed income; and
(B) furnishes the return of income for the specified
previous year declaring such undisclosed income therein;

63. Section 271AAB
(b) a sum computed at the rate of twenty per cent. of the
undisclosed income of the specified previous year, if such
assessee—
(i) in the course of the search, in a statement under sub-
section (4) of section 132, does not admit the undisclosed
income; and
(ii) on or before the specified date––
(A) declares such income in the return of income
furnished for the specified previous year; and
(B) pays the tax, together with interest, if any, in respect of
the undisclosed income;

64. Section 271AAB
(c) a sum which shall not be less than thirty per cent. but
which shall not exceed ninety per cent. of the undisclosed
income of the specified previous year, if it is not covered
by the provisions of clauses (a) and (b).
(2) No penalty under the provisions of clause (c) of sub-
section (1) of section 271 shall be imposed upon the
assessee in respect of the undisclosed income referred to
in sub-section (1).
(3) The provisions of sections 274 and 275 shall, as far as
may be, apply in relation to the penalty referred to in this
section.

65. Section 271AAB
Explanation.– For the purposes of this section,
(a) "specified date" means the due date of furnishing
of return of income under sub-section (1) of section
139 or the date on which the period specified in the
notice issued under section 153A for furnishing of
return of income expires, as the case may be;
(b) "specified previous year" means the previous year
—
(i)which has ended before the date of search, but the
date of furnishing the return of income under sub-
section (1) of section 139 for such year has not
expired before the date of search and the assessee
has not furnished the return of income for the
previous year before the date of search; or
(ii)in which search was conducted;

66. Section 271AAB
(c) "undisclosed income" means––
(i) any income of the specified previous year represented,
either wholly or partly, by any money, bullion, jewellery or
other valuable article or thing or any entry in the books of
account or other documents or transactions found in the
course of a search under section 132, which has—
(A) not been recorded on or before the date of search in
the books of account or other documents maintained in
the normal course relating to such previous year; or

67. Section 271AAB
(B) otherwise not been disclosed to the Chief
Commissioner or Commissioner before the date of
search; or
(ii) any income of the specified previous year
represented, either wholly or partly, by any entry in
respect of an expense recorded in the books of
account or other documents maintained in the normal
course relating to the specified previous year which is
found to be false and would not have been found to be
so had the search not been conducted.]

68. SECTION 276CCC Prosecution
[Failure to furnish return of income in search cases. If a
person willfully fails to furnish in due time the return of
total income which he is required to furnish by notice
given under clause (a) of section 158BC, he shall be
punishable with imprisonment for a term which shall not
be less than three months but which may extend to three
years and with fine :

69. CA Pardeep Gandotra