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SEARCH AND SEIZURE UNDER INCOME TAX

SEARCH AND SEIZURE UNDER INCOME TAX [SECTION 132]

Who can authorise search and seizure

Principal Chief Commissioner/Principal Director General/Principal Commissioner/Principal Director/Director General/Director/Chief Commissioner/Commissioner/Additional Commissioner/Additional Director/Joint Director/Joint Commissioner.

Who can be authorised to conduct search and seizure

• Additional Director
• Additional Commissioner
• Joint Director
• Joint Commissioner
• Assistant Director
• Deputy Director
• Assistant Commissioner
• Deputy Commissioner
• Income-tax Officer

Powers of authorised officer

• To enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept
• Break open the lock of any door, box, locker, safe, almirah or other receptacles for exercising the powers conferred above 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, if the authorised officer has reason to suspect that such person has secreted about his person any such books of account, other documents, money, bullion, jewellery or other valuable article or thing.
• Require any person who is found to be in possession or control of any books of account or other documents maintained in the form of electronic record to afford the authorised officer the necessary facility to inspect such books of account or other documents
• Seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search. (However, bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of the search shall not be seized but the authorised officer shall make a note or inventory of such stock-in-trade of the business).
• Place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom
• Make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing.
• Where it is not possible or practicable to take physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of a dangerous nature, to serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the prior permission of the authorised officer. [With effect from 1-6-2003 the above point shall not apply in case of any valuable article or thing, being stock-in-trade of business]

Rights of the person searched

• To see the warrant of authorisation duly signed and sealed by the issuing authority
• To verify the identity of each member of the search party
• To make personal search of all members of the search party before the start of the search and on conclusion of the search
• To insist on personal search of ladies being taken only by lady, with strict regard to decency
• To have at least two respectable and independent residents of the locality, as witnesses
• A lady occupying an apartment being searched has a right to withdraw before the search party enters, if, according to custom, she does not appear in public
• To call a medical practitioner in case of emergency
• To allow the children to go to school, after checking their bags
• To have the facility of having meals, etc., at the normal time
• To inspect the seals placed on various receptacles, sealed in course of search and subsequently at the time of reopening of the seals
• Every person who is examined under section 132(4) has a right to ensure that the facts so stated by him have been recorded correctly
• To have a copy of the panchnama together with all the annexures
• To have a copy of any statement that is used against him by the Department
• To have inspection of the seized books of account, etc., or to take extracts therefrom in the presence of any of the authorised officers or any other person empowered by him
• To make an application objecting to the approval given by the CIT for retention of books and documents beyond 180 days from the date of the seizure

Duties of the person searched

• To allow free and unhindered ingress into the premises
• To see the warrant of authorisation and put signature on the same
• To identify all receptacles in which assets or books of account and documents are kept and to hand over keys to such receptacles to the authorised officer
• To identify and explain the ownership of the assets, books of account and documents found in the premises
• To identify every individual in the premises and to explain their relationship to the person being searched. He should not mislead by personation. 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 IPC
• Not to allow or encourage the entry of any unauthorised person into the premises
• Not to remove any article from its place without the notice or knowledge of the authorised officer. If he secrets or destroys any document with the intention of preventing the same from being produced or used as an evidence before the Court or public servant, he shall be punishable with imprisonment or fine or both, in accordance with section 204 of the IPC
• To answer all queries truthfully and to the best of his know-ledge, he should not allow any third party to either interfere or prompt while his statement is being recorded by the authorised officer. In doing so, he should keep in mind that—
(i) 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, under section 179 of the IPC
(ii) 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 under section 181 of the IPC
(iii) Similarly if he provides evidence which is false and which he knows or believes to be false he is liable to be punished under section 191 of the IPC
• To affix his signature on the recorded statement, inventories and the panchnama
• To ensure that peace is maintained throughout the duration of the search, and to co-operate with the search party in all respects so that the search action is concluded at the earliest and in a peaceful manner
• 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.

Failure to comply with section 132(1)(iib)

Rigorous imprisonment for a term which may extend to 2 years and shall also be liable to fine.

Failure to comply with section 153A

Punishable under section 276CC.

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