PRINCIPAL DIRECTOR OF INCOME TAX (INVESTIGATION) & ORS. VERSUS LALJIBHAI KANJIBHAI MANDALIA

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4081 OF 2022

(ARISING OUT OF SLP (CIVIL) NO. 25046 OF 2019)

PRINCIPAL DIRECTOR OF INCOME TAX

(INVESTIGATION) & ORS.

.....APPELLANT(S)

VERSUS

LALJIBHAI KANJIBHAI MANDALIA .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order dated 22.02.2019

passed by the High Court of Gujarat at Ahmedabad whereby the

warrant of authorization dated 07.08.2018 issued by the appellant1

under Section 132 of the Income Tax Act,19612

was quashed.

Consequently, all actions taken pursuant to such warrant of

authorization were ordered to be rendered invalid.

2. The respondent3

in its writ petition challenged the act of authorization

for search and seizure on the ground that it is a fishing enquiry and the

1 For short, ‘Revenue’

2 For short, ‘Act’

3 For short, ‘Assessee’

conditions precedent as specified in Section 132 of the Act are not

satisfied. It is the stand of the assessee that he was looking for an

avenue to invest some money and the M/s. Goan Recreation Clubs

Private Ltd4

. was in need of finance for setting up of its business and

hence consequently approached the assessee herein for a loan. As a

security, the borrower company offered that another company would

give its property to the assessee. It may be noticed that there is no

allegation of mala-fides against the officers of the Revenue.

3. In the counter-affidavit filed by the Revenue, giving the history of

transaction, it was stated that the “chain of events raised credible

doubt on the transaction entered into by the petitioner (assessee) with

the company in question as it is the familiar modus operandi being

practiced by the entry operators”. It was also stated that the assessee

was not expected to comply with the notice of the Revenue as the

assessee would have brought the alibi of jurisdiction to evade or not

comply with the notice. It was in the interest of revenue that it was not

expected to disclose to any outside agency/body or to any of the

members directly or indirectly involved in the cob-web of financial

transactions with the core groups, viz. Sarju Sharma and associated

group of companies. Any inkling of action contemplated by the

Revenue was likely to compromise the confidentiality and secrecy of

the case intact. It was further stated that the apparent investment

4 For short, ‘Company’

made by the assessee was found to be not a judicious investment

choice from the point of view of a prudent businessman as the

company to which loan was provided by the assessee had no

established business, no goodwill in the market, nor was it enlisted in

any of the stock exchanges, nor did the assessee had any financial

dealings with the company previously. The quick repayment of loan

shows that the investment was not meant to earn steady interest

income. The investment and nature of transaction entered into by the

assessee was akin to the familiar modus operandi employed by the

entry operators to provide an accommodation entry to bring the

unaccounted black money to books for brief period to run the business

till sufficient fund is generated by running the business or some fund

from any other unaccounted source comes later on. This is the angle of

the investigative process underway in which trail of the money being

paid by the assessee is being investigated.

4. The undisputed facts are that the assessee during the financial year

2016-17 transferred a sum of Rs. 6 crores on 01.06.2016 and Rs. 4

crores on 21.06.2016 to M/s Goan Recreation Clubs Private Ltd. The

assessee secured the loan by way of a mortgage of the property

forming part of Survey No. 31/1-A situated in Village Bambolim, Distt.

North Goa. It is an admitted fact that the assessee became the Director

of the Company on 18.05.2016 and then ceased to be so on

23.06.2016. It is also admitted that amount of Rs.10 crores was repaid

on different dates starting from 06.10.2016 till 31.03.2017 and after

repayment of the loan, mortgage was released on 10.07.2017. The

Company paid interest as well. It is admitted that the assessee has

filed his income-tax return showing the interest income of

Rs.42,51,946/- which has been taxed as well. The assessment was

finalized under Section 143(3) of the Act on 02.03.2021.

5. In terms of the authorization after recording reasons to believe in the

satisfaction note, search was conducted on 10.08.2018 at the

residential premises of the assessee which continued till 3:00 am on

11.08.2018 in terms of Section 132 of the Act. The satisfaction note

was not supplied to the assessee nor was required to be disclosed in

terms of Explanation to Section 132(1) of the Act inserted by the

Finance Act, 2017 with retrospective effect i.e. on 01.04.1962. The

reasons recorded were produced before the High Court and before this

Court.

6. The High Court has reproduced the stand of the Revenue to explain the

action of search and seizure against the assessee as under:

“a) The authorized officers/ investigating officers conducted

search and seizure operation at various spots across various

states related to the case of Shri Sarju Sharma & other

associated group ‘of companies which had financial transactions

with Shri Sarju Sharma (PANAKOPS3325A) and M/s. Goan

Recreation Clubs Pvt Ltd., Goa (PAN-ANYPS6038F), hereinafter

referred to as ‘the company’. Shri Sarju Sharma is a leading

business entrepreneur of Siliguri, Dist-Jalpaiguri, engaged in the

hospitality business of Hotel, Restaurant and Bar running

business under the name and style of M/s Hotel Alishan and

Restaurant. The company M/s. Goan Recreation Clubs Pvt Ltd.

after being incorporated in the year 2015 has stepped into the

world of gaming & entertainment unit of Casino industry. The

casino business is being operated from the premises of Grand

Hyatt Hotel, Bambolin, Goa w.e.f. 29th Ju1y, 2016.

b) The name of M/s Goan Recreation Clubs Pvt Ltd. appeared in

the credible information on high value cash deposits/ data of

suspicious cash deposits post demonetization period

disseminated by the DGIT(Inv.), W.B., Sikkim & NER, wherein it

was found that the said company had deposited cash to the tune

of Rs.13,79,10,500/- into its two bank accounts maintained with

ICICI Bank and HDFC Bank, North Goa.

c) M/s Goan Recreation Clubs Pvt. Ltd. was incorporated on

28.09.2015 with a nominal paid up share capital of Rs

2,00,000/-. The initial Directors were Sarju Shanna and Shri Rohit

Gurubhakta Sharma. During the initial year of its incorporation,

i.e., in the financial year 2015-16 the company raised huge

unsecured loan of Rs 5.77 crore from various individuals and

companies in a very peculiar manner, as the company at that

juncture was yet to commence any substantive business

activities. Again, in the financial year 2016- 17 the company

raised an unsecured loan of Rs.34.10 crore from various

individuals and companies which includes an amount of Rs.10

crore from the petitioner viz. Shri Laljibhai Kanjibhai Mandalia

from Ahmedabad. The details of unsecured loan received by the

company and credited into the bank accounts of the company

are given below:

xx xx xx

d) From the above chart it is noticed that the company raised

huge unsecured loans within two years of its incorporation from

various individuals and companies.

e) Whereas, in the pre search analysis, on going through the

records available with the MCA (Ministry of Corporate Affairs)

and ITBA (Income Tax Business Application) it came to light that

the company M/s Goan Recreation Clubs Pvt. Ltd. During the

financial year 2016-17 have introduced three new Directors

along with the exit of then existing Director Shri Rohit

Gurubhakta Sharma on 03.03.2017, the details given in the

following table:

xx xx xx

(f) xx xx xx

(g) xx xx xx

The search and seizure operation in the premises of the

petitioner was contemplated and carried out on the basis of the

information gathered as explained in the above point nos. (a) to

(g) of this para.

From the above though it is found that Shri Mandalia had

resigned as Additional Director of the company on 25.06.2016

and the loan was repaid by the company in the same year as

noticed from the table given at point no. (g) of this para but the

chain of events raises credible doubt on the transactions entered

into by the petitioner with the company in question as it is the

familiar modus operandi being practiced by the entry operators.

Therefore, from the foregoing paras it can be concluded that the

department initiated the search and seizure operation in the

premises of the petitioner after conforming to all the criteria

mentioned in the Section 132 sub-section 1 clause (s), (b) and

was initiated after detailed analysis of information, duly

recording of reasons in the Satisfaction Note and approval of the

same by the competent authorities.”

7. The Company was incorporated on 28.09.2015 with two Directors

holding 10,000 shares each of the face value of Rs.10. The stand of the

Revenue shows that the said Company stepped into the business of

gaming and entertainment and launched a casino in Goa on

29.07.2016 without having any adequate capital. The allegation

against the company is in relation to cash deposits of total

Rs.13,79,10,500/- soon after demonetization on 08.11.2016. The

satisfaction note prepared by DDIT (Investigation), Unit-1, Jalpaiguri

was approved by Additional Director of Income Tax (Investigation) Unit5, Kolkata and further approved by DGIT (Investigation), Kolkata on

07.08.2018. The High Court also quoted paragraph 4.3 from an

affidavit in-reply filed by the Revenue which reads thus:

“5.3. As far as the investment opportunity is concerned, it is

quite glaring that the petitioner invested 10 crores within a span

of one month on 01.06.2016 and 21.06.2016 by way of loan on

interest given to M/s Goan Recreation Clubs Pvt. Ltd. The

investment was made from the Kotak Mahindra Bank A/c No.

80116714807 of the petitioner and deposited into the HDFC

Bank A/c No. 50200015405430 of the company, M/s Goan

Recreation Clubs Pvt. Ltd. Interestingly, the loan was repaid by

the latter in five installments from 06.10.2016 to 31.03.2017 [as

shown in point no. (g) of para 4.1]. The apparent investment

made by the petitioner is found to be not a judicious investment

choice from the point of view of a prudent business man as the

company to which the petitioner provided loan, had no

established business, no goodwill in the market, nor was it

enlisted in any of the stock exchanges, nor did the petitioner

have had any financial dealings with the company previously.

The quick repayment of the loan shows that the investment was

not meant to earn steady interest income. All this goes on to

suggest that the investment and nature of transaction entered

into by the petitioner was akin to the familiar modus operandi

being employed by the entry operators to provide an

accommodation entry to bring the unaccounted black money to

books for brief period to run the business till sufficient fund is

generated by running the business or some fund from any other

unaccounted source came later on. That is the angle of the

investigative process underway in which fund trail of the money

paid by the petitioner is being investigated”

8. The High Court found that none of the reasons to believe to issue

authorization met the requirement of Section 132(1)(a), (b) and (c).

The said Section reads thus:

“132. Search and seizure - (1) Where the Principal Director

General or Director General or Director or the Principal Chief

Commissioner or Chief Commissioner or Principal Chief

Commissioner or Commissioner or Additional Director or

Additional Commissioner, or Joint Director or Joint Commissioner

in consequence of information in his possession, has reason to

believe that-

(a) any person to whom a summons under sub-section (1) of

section 37 of the Indian Income Tax Act, 1922 (11 of

1922), or under sub-section (1) of section 131 of this Act,

or a notice under sub-section (4) of section 22 of the

Indian Income Tax Act, 1922 (11 of 1922), or under subsection (1) of section 142 of this Act was issued to

produce, or cause to be produced, any books of account or

other documents has omitted or failed to produce, or

cause to be produced, such books of account, or other

documents as required by such summons or notice, or

(b) any person to whom a summons or notice as aforesaid

has been or might be issued will not, or would not,

produce or cause to be produced, any books of account or

other documents which will be useful for, or relevant to,

any proceeding under the Indian Income Tax Act, 1922 (11

of 1922), or under this Act, or

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 for the

purposes of the Indian Income Tax Act, 1922 (11 of 1922),

or this Act (hereinafter in this section referred to as the

undisclosed income or property).

Explanation- For the removal of doubts, it is hereby

declared that the reason to believe, as recorded by the

income-tax authority under this sub-section, shall not be

disclosed to any person or any authority or the Appellate

Tribunal.

………………………..”

9. Mr. Balbir Singh, learned Additional Solicitor General of India, appearing

for the Revenue argued that the High Court has completely misdirected

itself in quashing the authorization as the jurisdiction of the High Court

while exercising judicial review is very limited. It was contended that

the High Court erred in law in finding that clauses (b) and (c) of Section

132(1) of the Act are not satisfied when it recorded as under:

“16……Thus, as rightly submitted by the learned counsel for the

petitioner, the belief that the petitioner would not respond to a

summons or notice issued as envisaged under clause (b) of subsection (1) of section 132 is not based upon any information or

other material but is based upon conjectures and surmises that

the petitioner would take the alibi of lack of jurisdiction on the

part of the respondents. This contention of the first respondent

also lends support to the contention raised on behalf of the

petitioner that powers under section 132 of the Act have been

resorted to because that is the only provision which vests

jurisdiction in the Kolkata authorities for taking action against

the petitioner. Evidently, therefore, the circumstance envisaged

under clause (b) of sub-section (1) of section 132 of the Act does

not exist in the present case.

17…..There is nothing on record to indicate that any belief has

been formed by the competent authority to the effect that the

petitioner has in his possession any money, bullion, jewellery or

other valuable article or thing which would not have been

disclosed by him for the purposes of the Act. On the contrary, in

the facts of the present case, from the record of the case as

produced by the respondents as well as by the petitioner, it is

evident that the loan transaction whereby the petitioner had

advanced Rs.10,00,00,000/- to the borrower company has been

duly reflected in the books of account of the petitioner. In his

return of income, the petitioner has duly shown the interest

income from such transaction. The tax deducted at source in

respect of such interest income, has been credited to the

account of the petitioner by the concerned authority. Therefore,

the entire transaction has been disclosed by the petitioner. There

is no other material on record on the basis the respondents could

have formed the belief as contemplated under clause (c) of sub9

section (1) of section 132 of the Act. Evidently, therefore the

circumstance envisaged under clause (c) of section 132(1) of the

Act also does not exist in the present case.”

10. Mr. Balbir Singh referred to the judgments of this Court reported as

N.K. Jewellers and Another v. Commissioner of Income Tax, New

Delhi

, Commissioner of Income Tax, Allahabad and Ors. v.

Vindhya Metal Corporation and Ors.

, Income Tax Officer,

Special Investigation Circle-B, Meerut v. Seth Brothers and

Ors.

and Director General of Income Tax (Investigation), Pune

and Ors. v. Spacewood Furnishers Private Limited and Ors.

contend that though it is open to the Court to examine the question

whether “reasons to believe” have any rational connection or a

relevant bearing to the formation of the belief and that such reasons

are not extraneous or irrelevant as the officer has to produce relevant

evidence to sustain his belief in case the reasons to believe are

questioned in court, however, it was argued that the jurisdiction of the

High Court is to examine the existence of reasons not the legality of

the same.

11. On the other hand, Mr. Datar, learned senior advocate appearing for

the assessee argued that the High Court has rightly held that none of

the pre-requisite conditions for search and seizure under Section 132 of

the Act are satisfied. It was argued that it is not the case of the

5 (2018) 12 SCC 627

6 (1997) 5 SCC 321

7 (1969) 2 SCC 324

8 (2015) 12 SCC 179

Revenue that clause (a) of sub-section (1) of Section 132 of the Act is

applicable, whereas the High Court has recorded a finding that even

clause (b) and clause (c) of sub-section (1) of Section 132 of the Act

are not satisfied. Since the view of the High Court is based upon

established principles of law, no case for interference is made out in

the present appeal under Article 136 of the Constitution of India. Mr.

Datar referred to the following judgments, namely, Seth Brothers &

Ors. etc.; Vindhya Metal Corporation & Ors; Ajit Jain v. Union of

India

, Union of India v. Ajit Jain & Anr.

, Dimondstar Exports

Ltd. v. Director General of Income-Tax (Investigation)

, MECTEC

v. Director of Income-Tax (Investigation)

, L.R. Gupta & Ors. v.

Union of India & Ors.

and Janak Raj Sharma v. Director of

Inspection (Investigation) & Ors.

12. We have heard learned counsel for the parties and find that the view of

the High Court that the authorization to search the premises of the

assessee is invalid, cannot be sustained. The expression “reasons to

believe” is a component of many statutes such as in the case of

reassessment of Income under the Act or its predecessor statute, the

Essential Commodities Act, 1955; the Foreign Exchange Regulation Act,

1973 as well as in respect of action of the Revenue in the matter of

9 (2000) 242 ITR 302 (Del.)

10 (2003) 260 ITR 80 (SC)

11 (2005) 278 ITR 36 (Bom.)

12 (2021) 433 ITR 203 (Telangana)

13 (1991) SCC OnLine Del. 584 : (1992) 194 ITR 32 (Del.)

14 (1995) 215 ITR 234 (P&H)

search and seizure.

13. In S. Narayanappa v. CIT,

15 a case of re-assessment for the reason

that income had escaped assessment, this Court held the Revenue

must have reason to believe that the income, profits or gains

chargeable to income tax had been underassessed. The Court held as

under:

“2. ….. ….. But the legal position is that if there are in fact some

reasonable grounds for the Income Tax Officer to believe that

there had been any non-disclosure as regards any fact, which

could have a material bearing on the question of

underassessment that would be sufficient to give jurisdiction to

the Income Tax Officer to issue the notice under Section 34.

Whether these grounds are adequate or not is not a matter for

the court to investigate. In other words, the sufficiency of the

grounds which induced the Income Tax Officer to act is not a

justiciable issue. It is of course open for the assessee to contend

that the Income Tax Officer did not hold the belief that there had

been such non-disclosure. In other words, the existence of the

belief can be challenged by the assessee but not the sufficiency

of the reasons for the belief. Again the expression “reason to

believe” in Section 34 of the Income Tax Act does not mean a

purely subjective satisfaction on the part of the Income Tax

Officer. The belief must be held in good faith: it cannot be merely

a pretence. To put it differently it is open to the court to examine

the question whether the reasons for the belief have a rational

connection or a relevant bearing to the formation of the belief and

are not extraneous or irrelevant to the purpose of the section. To

this limited extent, the action of the Income Tax Officer in starting

proceedings under Section 34 of the Act is open to challenge in a

court of law. (See Calcutta Discount Co. Ltd. v. Income Tax Officer,

Companies District I, Calcutta [41 ITR 191]

xxx xxx xxx

15 AIR 1967 SC 523

4. ………….. The earlier stage of the proceeding for recording the

reasons of the Income Tax Officer and for obtaining the sanction

of the Commissioner are administrative in character and are not

quasi-judicial. The scheme of Section 34 of the Act is that, if the

conditions of the main section are satisfied a notice has to be

issued to the assessee containing all or any of the requirements

which may be included in a notice under sub-section (2) of Section

22. ………….”

14. Seth Brothers is referred to by both Revenue and the assessee

relating to the act of search and seizure. It was held that the exercise

of power is a serious invasion upon the rights, privacy and freedom of

the tax-payer. The power must be exercised strictly in accordance with

law and only for the purposes for which law authorizes it to be

exercised. The High Court had accepted that the correctness of the

opinion actually formed by the Income Tax Officer was not open to

scrutiny in a writ petition, but the search and seizure of documents and

books of accounts held to be made in excess of the powers conferred

upon the Income Tax Officer was mala fide. This Court found no merit

in such finding in view of the sworn affidavits by the concerned Income

Tax Officers that they did in fact form the requisite opinion under

Section 132 of the Act. This Court set aside the findings recorded by

the High Court, when it was held as under:

“8. The section does not confer any arbitrary authority upon the

Revenue Officers. The Commissioner or the Director of Inspection

must have, in consequence of information, reason to believe that

the statutory conditions for the exercise of the power to order

search exist. He must record reasons for the belief and he must

issue an authorisation in favour of a designated officer to search

the premises and exercise the powers set out therein. …………....

If the action of the officer issuing the authorization, or of the

designated 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 exercise of the power are not satisfied the

proceeding is liable to be quashed. But where power is exercised

bona fide, and in furtherance of the statutory duties of the tax

officers any error of judgment on the part of the Officers will not

vitiate the exercise of the power. Where the Commissioner

entertains the requisite belief and for reasons recorded by him

authorises a designated officer to enter and search premises for

books of account and documents relevant to or useful for any

proceeding under the Act, the Court in a petition by an aggrieved

person cannot be asked to substitute its own opinion whether an

order authorising search should have been issued. Again, any

irregularity in the course of entry, search and seizure committed

by the officer acting in pursuance of the authorisation will not be

sufficient to vitiate the action taken, provided the officer has in

executing the authorisation acted bona fide.

xxx xxx xxx

21. These proceedings were brought before the High Court by way

of a writ petition under Article 226 of the Constitution before any

investigation was made by the Income Tax Officers pursuant to

the action taken by them. In appropriate cases a writ petition may

lie challenging the validity of the action on the ground of absence

of power or on a plea that proceedings were taken maliciously or

for a collateral purpose. ……………………”

15. In The Income Tax Officer, I Ward, District VI, Calcutta and Ors.

v. Lakhmani Mewal Das

, this Court was examining the scope of the

expression “reason to believe” in the context of reopening of

assessment on the ground that income had escaped assessment. It

was held that the powers of the Income Tax Officer to reopen

16 (1976) 3 SCC 757

assessment, though wide, but are not plenary. The words of the statute

are “reason to believe” and not “reason to suspect”. It was held that no

doubt the Court cannot go into the sufficiency or adequacy of the

material and substitute its own opinion for that of the Income Tax

Officer on the point as to whether action should be initiated for

reopening assessment, but at the same time, it is not any and every

material, howsoever vague and indefinite or distant, remote and

farfetched, which would warrant the formation of the belief relating to

escapement of the income of the assessee from assessment. This

Court held as under:-

“11. As stated earlier, the reasons for the formation of the belief

must have a rational connection with or relevant bearing on the

formation of the belief. Rational connection postulates that there

must be a direct nexus or live link between the material coming

to the notice of the Income Tax Officer and the formation of his

belief that there has been escapement of the income of the

assessee from assessment in the particular year because of his

failure to disclose fully and truly all material facts. It is no doubt

true that the court cannot go into the sufficiency or adequacy of

the material and substitute its own opinion for that of the Income

Tax Officer on the point as to whether action should be initiated

for reopening assessment. At the same time we have to bear in

mind that it is not any and every material, howsoever vague and

indefinite or distant, remote and farfetched, which would warrant

the formation of the belief relating to escapement of the income

of the assessee from assessment. ……. The reason for the

formation of the belief must be held in good faith and should not

be a mere pretence.

12. The powers of the Income Tax Officer to reopen assessment

though wide are not plenary. The words of the statute are “reason

to believe” and not “reason to suspect” The reopening of the

assessment after the lapse of many years is a serious matter. The

Act, no doubt, contemplates the reopening of the assessment if

grounds exist for believing that income of the assessee has

escaped assessment. The underlying reason for that is that

instances of concealed income or other income escaping

assessment in a large number of cases come to the notice of the

Income Tax Authorities after the assessment has been completed.

The provisions of the Act in this respect depart from the normal

rule that there should be, subject to right of appeal and revision,

finality about orders made in judicial and quasi-judicial

proceedings. It is, therefore, essential that before such action is

taken the requirements of the law should be satisfied. The live

link or close nexus which should be there between the material

before the Income Tax Officer in the present case and the belief

which he was to form regarding the escapement of the income of

the assessee from assessment because of the latter's failure or

omission to disclose fully and truly all material facts was missing

in the case. ……………...”

16. In Partap Singh (Dr) v. Director of Enforcement

, this Court was

considering the action of search and seizure under the Foreign

Exchange Regulation Act,1973. It was held that when an officer of the

Enforcement Department proposes to act under Section 37, he must

have reason to believe that the documents useful for investigation or

proceeding under the Act are secreted. It was further held that the

reasons must be sufficient for a prudent man to come to the conclusion

that income escaped assessment and that the Court can examine the

sufficiency or adequacy of the reasons on which the Income Tax Officer

has acted. This Court held as under:-

“9. When an officer of the Enforcement Department proposes to

act under Section 37 undoubtedly, he must have reason to

believe that the documents useful for investigation or proceeding

under the Act are secreted. The material on which the belief is

17 (1985) 3 SCC 72

grounded may be secret, may be obtained through Intelligence or

occasionally may be conveyed orally by informants. ………….. ….

The Court in terms held that whether these grounds are adequate

or not is not a matter for the court to investigate.

10. The expression “reason to believe” is not synonymous with

subjective satisfaction of the Officer. The belief must be held in

good faith; it cannot merely be a pretence. In the same case, it

was held that it is open to the court to examine the question

whether the reasons for the belief have a rational connection or a

relevant bearing to the formation of the belief and are not

extraneous or irrelevant to the purpose of the section. To this

limited extent the action of the Income Tax Officer in starting

proceedings under Section 34 is open to challenge in a court of

law. ……………… The last part of the submission does not

commend to us because the file was produced before us and as

stated earlier, the Officer issuing the search warrant had material

which he rightly claimed to be adequate for forming the

reasonable belief to issue the search warrant.

xxx xxx xxx

14. Assuming that it was obligatory to record reasons in writing

prior to directing the search, the file submitted to the court

unmistakably shows that there was material enough before the

officer to form a reasonable belief which prompted him to direct

the search. That the documents seized during the search did not

provide sufficient material to the officer for further action cannot

be a ground for holding that the grounds which induced the

reasonable belief were either imaginary or fictitious or mala fide

conjured up.

xxx xxx xxx

16. In this behalf, the appellant further contended that if the

search was genuine or bona fide for carrying out the purposes of

the Act, it is surprising that when the matter was before the High

Court, the Enforcement Directorate submitted that it does not

wish to take any further action in respect of the material seized

during the search. There is no warrant for the assertion that every

search must result in seizure of incriminating material. Such an

approach would be a sad commentary on human ingenuity. There

can be cases in which search may fail or a reasonable explanation

in respect of the documents may be forthcoming. ……..”

17. This Court in a judgment reported as Phool Chand Bajrang Lal and

Anr. v. Income Tax Officer and Anr.

18 was examining the reasons to

be recorded for the purpose of re-assessment of the Income Tax

already assessed. It was only on the basis of specific, reliable and

relevant information coming to the knowledge of Income Tax Officer

subsequently, he has reasons which must be recorded, to believe that

due to omission or failure on the part of the assessee to make a true

and full disclosure of all material facts necessary for his assessment

during the concluded assessment proceedings, any part of his income,

profit or gains chargeable to income tax has escaped assessment. This

Court held as under:-

“25. ……. Since, the belief is that of the Income Tax Officer, the

sufficiency of reasons for forming the belief, is not for the Court to

judge but it is open to an assessee to establish that there in fact

existed no belief or that the belief was not at all a bona fide one

or was based on vague, irrelevant and non-specific information. To

that limited extent, the Court may look into the conclusion arrived

at by the Income Tax Officer and examine whether there was any

material available on the record from which the requisite belief

could be formed by the Income Tax Officer and further whether

that material had any rational connection or a live link for the

formation of the requisite belief. It would be immaterial whether

the Income Tax Officer at the time of making the original

assessment could or, could not have found by further enquiry or

investigation, whether the transaction was genuine or not, if on

the basis of subsequent information, the Income Tax Officer

arrives at a conclusion, after satisfying the twin conditions

prescribed in Section 147(a) of the Act, that the assessee had not

18 (1993) 4 SCC 77

made a full and true disclosure of the material facts at the time of

original assessment and therefore income chargeable to tax had

escaped assessment……..”

18. This Court in a judgment reported as N. Nagendra Rao & Co. v.

State of A.P.

, was examining the provisions of Essential

Commodities Act, 1955. This Court considering the objective of the Act,

the provisions dealing with search, seizure and confiscation and the

nature of their powers and manner of its exercise to assist in

determining if the statutory authorities are responsible for any loss or

damage to the stocks, held as under:-

“5. ……… The expression “reason to believe” has been

interpreted by this Court to mean that even though formation of

opinion may be subjective but it must be based on material on

the record. It cannot be arbitrary, capricious or whimsical. It is,

thus, a check on exercise of power to seize the goods. The

procedure after seizure is provided for by Section 6-A of the Act.

………….

……………………But what needs to be mentioned is that since the

power is very wide as a person violating the Control Orders is to

be visited with serious consequences leading not only to the

confiscation of the seized goods, packages or vessel or vehicle in

which such essential commodity is found or is conveyed or

carried, but is liable to be prosecuted and penalised under Section

7 of the Act, it is inherent in it that those who are entrusted with

responsibility to implement it should act with reasonableness,

fairness and to promote the purpose and objective of the Act.

Further, it should not be lost sight of that the goods seized are

liable to be confiscated only if the Collector is satisfied about

violation of the Control Orders. The language of the section and its

setting indicate that every contravention cannot entail

confiscation. That is why the section uses the word ‘may’. A trader

indulging in black marketing or selling adulterated goods etc.

should not, in absence of any violation, be treated on a par with

19 (1994) 6 SCC 205

technical violations such as failure to put up the price-list etc. or

even discrepancies in stock”.

19. In a judgment reported as Union of India v. Agarwal Iron

Industries

it was noticed that it is difficult to appreciate how the

denial in the counter-affidavit filed by the Revenue could be treated as

an admission by implication to come to a conclusion that no reason

was ascribed for search and seizure and, therefore, action taken under

Section 132 of the Act was illegal. The relevant confidential file, if

required and necessary, could have been called for and examined. The

Revenue in the counter-affidavit was not required to elucidate and

reproduce the information and details that formed the foundation of

search. It was further held that the issuance of search and seizure on

the basis of formation of opinion which a reasonable and prudent man

would form for arriving at a conclusion to issue a warrant was done by

way of an interim measure. The search and seizure is not to be treated

as confiscation. This Court held as under:-

“10. The provision contained in Section 132(1) of the Act enables

the competent authority to direct for issuance of search and

seizure on the basis of formation of an opinion which a reasonable

and prudent man would form for arriving at a conclusion to issue

a warrant. It is done by way of an interim measure. The search

and seizure is not confiscation. The articles that are seized are the

subject of enquiry by the competent authority after affording an

opportunity of being heard to the person whose custody it has

been seized. The terms used are “reason to believe”. Whether the

competent authority had formed the opinion on the basis of any

acceptable material or not, as is clear as crystal, the High Court

has not even remotely tried to see the reasons. Reasons, needless

20 (2014) 15 SCC 215

to say, can be recorded on the file and the Court can scrutinise

the file and find out whether the authority has appropriately

recorded the reasons for forming of an opinion that there are

reasons to believe to conduct search and seizure. As is evincible,

the High Court has totally misdirected itself in quashing the

search and seizure on the basis of the principles of non-traverse.”

20. This Court in another judgment in Spacewood Furnishers (P) Ltd.

set aside the order of the High Court, wherein it had interdicted with

the action of search and seizure under Article 226 of the Constitution.

It was held as under:

“12. In the present case the satisfaction note(s) leading to the

issuing of the warrant of authorisation against the respondent

assessee were placed before the High Court. As it would appear

from the impugned order [Spacewood Furnishers (P) Ltd. v. DG of

Income Tax, 2011 SCC OnLine Bom 1610 : (2012) 340 ITR 393] the

contents thereof were exhaustively reproduced by the High Court.

The said satisfaction note(s) have also been placed before us. A

perusal of the file containing the satisfaction note(s) indicate that

on 8-6-2009 the Assistant Director of Income Tax (Investigation),

Nagpur had prepared an elaborate note containing several

reasons as to why he had considered it reasonable to believe that

if summons or notice were issued to the respondent to produce

the necessary books of account and documents, the same would

not be produced. The Assistant Director also recorded detailed

reasons why he entertains reasons to believe that the promoters

of the respondent assessee company would be found to be in

possession of money, bullion, jewellery, etc. which represents

partly or wholly income which has not been disclosed for the

purposes of the Act.

xx xx xx

21. In the light of the views expressed by this Court in ITO v. Seth

Bros. [ITO v. Seth Bros., (1969) 2 SCC 324 : (1969) 74 ITR 836]

and Pooran Mal [Pooran Mal v. Director of Inspection

(Investigation), (1974) 1 SCC 345 : 1974 SCC (Tax) 114 : (1974) 93

ITR 505] , the above opinion expressed by the High Court is

plainly incorrect. The necessity of recording of reasons, despite

the amendment of Rule 112(2) with effect from 1-10-1975, has

been repeatedly stressed upon by this Court so as to ensure

accountability and responsibility in the decision-making process.

The necessity of recording of reasons also acts as a cushion in the

event of a legal challenge being made to the satisfaction reached.

Reasons enable a proper judicial assessment of the decision taken

by the Revenue. However, the above, by itself, would not confer in

the assessee a right of inspection of the documents or to a

communication of the reasons for the belief at the stage of issuing

of the authorisation. Any such view would be counterproductive of

the entire exercise contemplated by Section 132 of the Act. It is

only at the stage of commencement of the assessment

proceedings after completion of the search and seizure, if any,

that the requisite material may have to be disclosed to the

assessee.

22. At this stage we would like to say that the High Court had

committed a serious error in reproducing in great detail the

contents of the satisfaction note(s) containing the reasons for the

satisfaction arrived at by the authorities under the Act. We have

already indicated the time and stage at which the reasons

recorded may be required to be brought to the notice of the

assessee. In the light of the above, we cannot approve of the

aforesaid part of the exercise undertaken by the High Court which

we will understand to be highly premature; having the potential of

conferring an undue advantage to the assessee thereby

frustrating the endeavour of the Revenue, even if the High Court

is eventually not to intervene in favour of the assessee.”

21. The judgment of this Court in N.K. Jewellers referred to by Mr. Balbir

Singh is on line of the facts of the case. The proceedings initiated

under Section 132 of the Act were held to be valid as the explanation

given by the appellant regarding the amount of cash of Rs 30 lakhs

found by GRP and seized by the authorities has been disbelieved and

has been treated as income not recorded in the books of accounts

maintained by it. In Vindhya Metal Corpn., this Court had not

interfered with the order passed by the High Court that on the

information in possession of the Commissioner, no reasonable person

could have entertained a belief that the amount in possession of the

assessee represented income which would not have been disclosed by

him for purpose of the Act.

22. The judgment of Delhi High Court in Ajit Jain is on the facts of that

case but the law stated is not in dispute. The High Court found the act

of search as invalid on the facts of that case. In that case, a survey

under Section 133-A of the Act was conducted to ascertain whether the

cash of Rs. 8.6 lakhs was reflected in the accounts of the company.

The action of respondent No. 4 in issuing the authorisation under

Section 132(1) of the Act and seizure of Rs. 8.5 lakhs was challenged

on the ground that there was no “information” on record on the basis

whereof respondent No. 4 could form the belief that the said amount

recovered from the petitioner represented wholly or partly income

which had not been or would not have been disclosed for the purpose

of the Act, a condition precedent for exercise of power under Section

132(1) of the Act. The High Court held thus:-

“Thus, for authorising action under Section 132, the conditions

precedent are: (i) the information in the possession of the named

authority; and (ii) in consequence of which he may have reason to

believe that the person concerned is in possession of money,

bullion etc. which represents, either wholly or partly, income

which has not been or would not be disclosed for the purpose of

the Act. If either of these conditions are missing or have not been

adhered to, then power under Section 132 cannot be invoked.

Thus, the basis of exercise of power under Section 132(1) has to

be formation of belief and the belief has to be formed on the basis

of receipt of information by the authorising officer that the person

is in possession of money etc. which represents undisclosed

income.

“Information”, in consequence of which the Director General or

the Chief Commissioner etc., as the case may be, has from to his

belief is not only to be authentic but capable of giving rise to the

inference that a person is in possession of money etc. which has

not been or would not be disclosed for the purpose of the Act. In

other words, it must necessarily be linked with the ingredients

mentioned in the Section.

xxx xxx

By now it is well settled that while the sufficiency or otherwise of

the information cannot be examined by the court in writ

jurisdiction, the existence of information and its relevance to the

formation of the belief is open to judicial scrutiny because it is the

foundation of the condition precedent for exercise of a serious

power of search of a private property or person, to prevent

violation of privacy of a citizen……………. But the Court could

examine whether the reasons for the belief have a rational

connection or relevant bearing to the formation of the belief and

search warrant could not be issued merely with a view to making

a roving or fishing enquiry.

The expression ‘reason to believe’ has been explained in various

decisions by the Apex Court and High Courts while dealing with

Sections 132 and 148 of the Act. It has been held that the word

“reason to believe” means that a reasonable man, under the

circumstances, would form a belief which will impel him to take

action under the law. The formation of opinion has to be in good

faith and not on mere pretence. For the purpose of Section 132 of

the Act, there has to be a rational connection between the

information or material and the belief about undisclosed income,

which has not been and is not likely to be disclosed by the person

concerned.”

23. The judgments of the High Courts relied upon by Mr. Datar are

primarily on the facts of the respective case but in view of the

judgment of this Court, we do not feel the necessity to discuss such

judgments herein.

24. The detailed satisfaction note shows multiple entries in the account

books of Sarju Sharma and others. The manner of Sarju Sharma who

was either in Siliguri (West Bengal) or in Goa contacting the assessee

in Ahmedabad for a loan of Rs.10 crores does not appear to be a

normal transaction. Subsequent repayment of mortgage and the

interest income reflected in the relevant assessment year appears to

be the steps taken by the assessee to give a colour of genuineness but

the stand of the Revenue that such entry was an accommodation entry

is required to be found out and also the cobweb of entries required to

be unravelled including the trail of the money paid by the assessee.

25. The High Court quoted extensively from the counter-affidavit filed by

the Revenue as well as quoted para 4.3 of the affidavit-in reply but still

returned a finding that the Court could not find any other material

whatsoever insofar as the assessee is concerned for the purpose of

recording satisfaction under Section 132 of the Act. We find that

reasons to believe are not the final conclusions which the revenue

would arrive at while framing block assessment in terms of Chapter

XIV-B of the Act. The test to consider the justiciability of belief is

whether such reasons are totally irrelevant or whimsical. The reply in

the counter affidavit shows that the intention of the Revenue was to

un-layer the layering of money which is suspected to be done by the

assessee. The Revenue has asserted that the accommodation entry is

a common modus operandi to bring the unaccounted black money to

books for a brief period. The investment of Rs.10 crores for a short

period was not for earning interest income as the same was repaid in

the same assessment year. The Revenue intends to investigate the

fund trail of the money paid by the assessee. Such belief is not out of

hat or whimsical. The assessee’s stand is that it is fishing enquiry and

not a malafide action of the Revenue. The Revenue is specific so as to

find out the genuineness of the transaction believing that it was a

mere accommodation entry.

26. In Partap Singh, the action of search and seizure was found to be

valid. Though the stand of the Enforcement Directorate was that in

view of the material seized during the search, it does not wish to take

any further action, it was found that there was no warrant for the

assertion that every search must result in seizure of incriminating

material. There can be cases in which search may fail or reasonable

explanation of the documents may be forthcoming. At this stage of

search and seizure, the Court has to examine whether the reason to

believe are in good faith; it cannot merely be pretence. The belief

recorded must have a rational connection or a relevant bearing to the

formation of the belief and should not be extraneous or irrelevant to

the purpose of the section. In view of the detailed reasons recorded in

the satisfaction note including the investment made by the assessee

for brief period and that investment is alleged to be an accommodation

entry, it cannot be said to be such which does not satisfy the prerequisite conditions of Section 132(1) of the Act.

27. As per the Revenue, Clauses (b) & (c) of Section 132 (1) were satisfied

before the warrant of authorization was approved. The satisfaction

note was recorded in terms of an assessee whose jurisdictional

assessing officer was in the State of the West Bengal. It is the cobweb

of accounts of such assessee which are required to be unravelled. It is

not unreasonable for the Revenue to apprehend that the assessee

would not respond to the summons before the Assessing Officer in the

State of West Bengal. It was also alleged that such summons would

lead to disclosure of information collected by the Revenue against

Sarju Sharma and his group. Therefore, it was a reasonable belief

drawn by the Revenue that the assessee shall not produce or cause to

be produced any books of accounts or other documents which would

be useful or relevant to the proceedings under the Act. Such believe

was not based upon conjectures but on a bona-fide opinion framed in

the ordinary conduct of the affairs by the assessee generally. The

notice to the assessee to appear before the Income Tax authorities in

the State of West Bengal would have been sufficient notice of the

material against the Company and its group, to defeat the entire

attempt to unearth the cobweb of the accounts by the Company and

its associates.

28. Even clause (c) of Section 132(1) is satisfied. The assessee was in

possession of Rs.10 crores which was advanced as loan to the

Company. The Revenue wishes to find out as to whether such amount

is an undisclosed income which would include the sources from which

such amount of Rs.10 crores was advanced as loan to a totally stranger

person, unconnected with either the affairs of assessee or any other

link, to justify as to how a person in Ahmedabad has advanced Rs.10

crores to the Company situated at Kolkata in West Bengal for the

purpose of investment in Goa. The Revenue may fail or succeed but

that would not be a reason to interfere with the search and seizure

operations at the threshold, denying an opportunity to the Revenue to

unravel the mystery surrounding the investment made by the

assessee.

29. In a celebrated judgment of this Court in Tata Cellular v. Union of

India

, on the scope of judicial review, though in the context of

tenders, is very well applicable to the powers or limitations of the

Courts while exercising the jurisdiction under Article 226 of the

Constitution. One of the principles is that of judicial restraint. This

Court held that:

“73. Observance of judicial restraint is currently the mood in

England. The judicial power of review is exercised to rein in any

unbridled executive functioning. The restraint has two

contemporary manifestations. One is the ambit of judicial

intervention; the other covers the scope of the court's ability to

quash an administrative decision on its merits. These restraints

bear the hallmarks of judicial control over administrative action.

74. Judicial review is concerned with reviewing not the merits of

the decision in support of which the application for judicial

review is made, but the decision-making process itself.

xx xx xx

78. What is this charming principle of Wednesbury

unreasonableness? Is it a magical formula? In R. v. Askew [(1768) 4

Burr 2186 : 98 ER 139] , Lord Mansfield considered the question

whether mandamus should be granted against the College of

Physicians. He expressed the relevant principles in two eloquent

sentences. They gained greater value two centuries later:

“It is true, that the judgment and discretion of determining upon

this skill, ability, learning and sufficiency to exercise and practise

this profession is trusted to the College of Physicians and this

Court will not take it from them, nor interrupt them in the due

and proper exercise of it. But their conduct in the exercise of this

trust thus committed to them ought to be fair, candid and

unprejudiced; not arbitrary, capricious, or biased; much less,

warped by resentment, or personal dislike.”

xx xx xx

21 (1994) 6 SCC 651

80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp.

849-850, may be quoted:

“4. Wednesbury principle.— A decision of a public authority will

be liable to be quashed or otherwise dealt with by an appropriate

order in judicial review proceedings where the court concludes

that the decision is such that no authority properly directing itself

on the relevant law and acting reasonably could have reached it.

(Associated Provincial Picture Houses Ltd. v. Wednesbury

Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] , per Lord Greene,

M.R.)”

xx xx xx

82. Bernard Schwartz in Administrative Law, 2nd Edn., p. 584 has

this to say:

“If the scope of review is too broad, agencies are turned into

little more than media for the transmission of cases to the

courts. That would destroy the values of agencies created to

secure the benefit of special knowledge acquired through

continuous administration in complicated fields. At the same

time, the scope of judicial inquiry must not be so restricted

that it prevents full inquiry into the question of legality. If that

question cannot be properly explored by the judge, the right

to review becomes meaningless. ‘It makes judicial review of

administrative orders a hopeless formality for the litigant. …

It reduces the judicial process in such cases to a mere feint.’

Two overriding considerations have combined to narrow the scope

of review. The first is that of deference to the administrative

expert. In Chief Justice Neely's words:

‘I have very few illusions about my own limitations as a

judge and from those limitations I generalise to the inherent

limitations of all appellate courts reviewing rate cases. It

must be remembered that this Court sees approximately

1262 cases a year with five judges. I am not an accountant,

electrical engineer, financier, banker, stock broker, or

systems management analyst. It is the height of folly to

expect judges intelligently to review a 5000 page record

addressing the intricacies of public utility operation.’

It is not the function of a judge to act as a superboard, or with the

zeal of a pedantic schoolmaster substituting its judgment for that

of the administrator.

The result is a theory of review that limits the extent to which the

discretion of the expert may be scrutinised by the non-expert

judge. The alternative is for the court to overrule the agency on

technical matters where all the advantages of expertise lie with

the agencies. If a court were to review fully the decision of a body

such as state board of medical examiners ‘it would find itself

wandering amid the maze of therapeutics or boggling at the

mysteries of the pharmacopoeia’. Such a situation as a state

court expressed it many years ago ‘is not a case of the blind

leading the blind but of one who has always been deaf and blind

insisting that he can see and hear better than one who has

always had his eyesight and hearing and has always used them

to the utmost advantage in ascertaining the truth in regard to the

matter in question’.

The second consideration leading to narrow review is that of

calendar pressure. In practical terms it may be the more

important consideration. More than any theory of limited review it

is the pressure of the judicial calendar combined with the

elephantine bulk of the record in so many review proceedings

which leads to perfunctory affirmance of the vast majority of

agency decisions.”

xx xx xx

94. The principles deducible from the above are:

(1) The modern trend points to judicial restraint in administrative

action.

(2) The court does not sit as a court of appeal but merely reviews

the manner in which the decision was made.

(3) The court does not have the expertise to correct the

administrative decision. If a review of the administrative decision

is permitted it will be substituting its own decision, without the

necessary expertise which itself may be fallible.

(4) …..”

30. The power of judicial review and interference by the Courts in the

matters of disciplinary proceedings was being examined in the

judgement of this Court reported as Indian Oil Corporation Ltd. v.

Rajendra D. Harmalkar

. It was held that interference was not

permissible unless the order was contrary to law, or relevant factors

were not considered, or irrelevant factors were considered, or the

decision was one which no reasonable person could have taken.

31. In another judgment reported as Utkal Suppliers v. Maa Kanak

Durga Enterprises

, this Court was examining tender conditions in a

writ petition. It was held that judicial review in these matters is

equivalent to judicial restraint.

32. In the light of judgments referred to above, the sufficiency or

inadequacy of the reasons to believe recorded cannot be gone into

while considering the validity of an act of authorization to conduct

search and seizure. The belief recorded alone is justiciable but only

while keeping in view the Wednesbury Principle of Reasonableness.

Such reasonableness is not a power to act as an appellate authority

over the reasons to believe recorded.

22 2022 SCC Online SC 486

23 2021 SCC Online SC 301

33. We would like to restate and elaborate the principles in exercising the

writ jurisdiction in the matter of search and seizure under Section 132

of the Act as follows:

i) The formation of opinion and the reasons to believe recorded is

not a judicial or quasi-judicial function but administrative in

character;

ii) The information must be in possession of the authorised official

on the basis of the material and that the formation of opinion

must be honest and bona fide. It cannot be merely pretence.

Consideration of any extraneous or irrelevant material would

vitiate the belief/satisfaction;

iii) The authority must have information in its possession on the

basis of which a reasonable belief can be founded that the

person concerned has omitted or failed to produce books of

accounts or other documents for production of which summons

or notice had been issued, or such person will not produce such

books of accounts or other documents even if summons or notice

is issued to him; or

iv) Such person is in possession of any money, bullion, jewellery or

other valuable article which represents either wholly or partly

income or property which has not been or would not be

disclosed;

v) Such reasons may have to be placed before the High Court in the

event of a challenge to formation of the belief of the competent

authority in which event the Court would be entitled to examine

the reasons for the formation of the belief, though not the

sufficiency or adequacy thereof. In other words, the Court will

examine whether the reasons recorded are actuated by mala

fides or on a mere pretence and that no extraneous or irrelevant

material has been considered;

vi) Such reasons forming part of the satisfaction note are to satisfy

the judicial consciousness of the Court and any part of such

satisfaction note is not to be made part of the order;

vii) The question as to whether such reasons are adequate or not is

not a matter for the Court to review in a writ petition. The

sufficiency of the grounds which induced the competent

authority to act is not a justiciable issue;

viii) The relevance of the reasons for the formation of the belief is to

be tested by the judicial restraint as in administrative action as

the Court does not sit as a Court of appeal but merely reviews

the manner in which the decision was made. The Court shall not

examine the sufficiency or adequacy thereof;

ix) In terms of the explanation inserted by the Finance Act, 2017

with retrospective effect from 1.4.1962, such reasons to believe

as recorded by income tax authorities are not required to be

disclosed to any person or any authority or the Appellate

Tribunal.

34. In view of the above, we find that the High Court was not justified in

setting aside the authorization of search dated 07.08.2018.

Consequently, the appeal is allowed and the order passed by the High

Court is set aside. As a consequence thereof, the Revenue would be at

liberty to proceed against the assessee in accordance with law.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(V. RAMASUBRAMANIAN)

NEW DELHI;

JULY 13, 2022.

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PRINCIPAL DIRECTOR OF INCOME TAX (INVESTIGATION) & ORS. VERSUS LALJIBHAI KANJIBHAI MANDALIA

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