Law:

Section:

Section 132(8) of the income-tax act, 1961-Search and seizure-Time limit for retention of books of account-Whether provisions of section 132(8) are mandatory-Held, yes-Whether recording reasons by ito for retention of books beyond the period of 180 days and approval by commissioner of the same should take place before the expiry of 180 days from date of seizure-Held, yes Article 226 of the Constitution of India-Writ-Whether, where ito has retained assessee's books beyond the period of 180 days without recording reasons and without obtaining Commissioner's permission before the end of said period, assessee could file a writ instead of making objection to the board in terms of section 132(10)-Held, yes Facts As a result of search of the assessee's business premises, the revenue authorities seized the assessee's books of account on 18-8-1981. The period of 180 days from 18-8-1981 expired on 14-2-1982 but the ITO continued to retain the account books seized. In the meantime, on 8-3-1982, i.e., after the expiry of period of 180 days, the ITO recorded the reasons for retaining the books. The Commissioner gave his approval to the same on 25-3-1982. On 26-2-1982 the assessee asked the department to return its books as the period of 180 days prescribed in section 132(8) had expired. As the department refused to return the books, the assessee filed the writ. Held 1. The period of 180 days prescribed in section 132(8) is mandatory and not directory. A plain reading of the sub-section suggests that the books of account seized shall not be retained by the authorised officer for a period exceeding 180 days from the date of the seizure unless two things are done before the expiry of the period, namely : (i ) reasons are recorded by the authorised officer in writing ; and (ii) the approval of the Commissioner is obtained. Both these things are a precondition. They must be done before the period of 180 days expires. This conclusion is supported by the strong language in which sub-section (8) is worded. 2. There was no merit in the department's contention that instead of filing the writ the assessee should have gone to the Board in view of the provisions of section 132(10) and…

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