Page 26 - Knowledge Network Transform

delegated legislation. Therefore, it would be
illegal, to seize ‘goods’ or ‘documents or books or
things’ for which formation is opinion, made by the
authorized officer and not by the proper officer,
who authorized the search and seizure.

Search is a serious invasion is made upon the
rights, privacy and freedom of the tax-payer: In the
case of ITO v. Seth Bros., (1969) 2 SCC 324, it is
observed that search authorization must only be in
favour of a designated officer, he only exercises the
power set out therein. The Supreme Court in this
case held that

“8… Since by the exercise of the power a serious
invasion is made upon the rights, privacy and
freedom of the tax-payer, the power must be
exercised strictly in accordance with the law and
unable to do so, the Court may order that those
only for the purposes for which the law authorizes
documents be released.”
it to be exercised. If the action of the officer issuing
“Reasons to believe” wide connotation has to be
the authorization, or of the designated officer is
challenged the officer concerned must satisfy the on the basis of tangible materials and cannot be a
Court about the regularity of his action. If the mechanical reproduction of the words in the
statute: The Delhi High Court in J Sekar v UOI 2018
action is maliciously taken or power under the
(361) E.L.T. 689 (Del.); 2018 SCC OnLine Del. 6523,
section is exercised for a collateral purpose, it is
liable to be struck down by the Court. If the while examining the matter related to the PMLA
conditions for exercise of the power are not Act, has made useful observations regarding the
expression “reasons to believe”. The High Court
satisfied the proceeding is liable to be quashed.” In
observed that “72. Reasons to believe cannot be
the case Mapsa Tapes Pvt. Ltd. v Union of India
2006 (201) E.L.T. 7 (P&H.) it was observed that the a rubber stamping of the opinion already formed
power of search and seizure affects not only the by someone else. The officer who is supposed to
write down his reasons to believe has to
right of possession and enjoyment of property but
independently apply his mind. Further, and more
also the privacy of a citizen. The said decision of
the High Court is affirmed by the Supreme Court by importantly, it cannot be a mechanical
Order dated 15.02.2008 – Union of India v Mapsa reproduction of the words in the statute. When an
authority judicially reviewing such a decision
Tapes Pvt. Ltd. – 2008 (225) ELT (SC).
peruses such reasons to believe, it must be
One can approach the court for release of seized apparent to the reviewing authority that the
items: In the case of ITO v. Seth Bros (Supra), the officer penning the reasons has applied his mind
Supreme Court also held that “10. The aggrieved
to the materials available on record and has, on
party may undoubtedly move a competent Court
that basis, arrived at his reasons to believe. The
for an order releasing the documents seized. In process of thinking of the officer must be
such a proceeding the officer who has made the discernible. The reasons have to be made explicit.
search will be called upon to prove how the
It is only the reasons that can enable the reviewing
documents seized are likely to be useful for or
authority to discern how the officer formed his
relevant to a proceeding under the Act. If he is
reasons to believe.” The Supreme Court in Radha

23 Life is a succession of lessons which must be lived to be understood.