Your Rights as Assessee During Conduct of Income Tax Search

vimalpunamiyaBy CA Vimal Punamiya

Accommodation Times News Services

Q. 1 What remedy does the assessee have in case of misbehavior of the officers?
Ans. Misbehavior may lead to some injury, damage or harm
to the interest of the assessee or his reputation or it may only hurt
his feelings and sentiments, religious or otherwise, Depending
on facts, the action will lie by way of challenge of the proceedings
under article 226 if the search is done in an irregular and illegal
manner. If it is a case of misbehaviour leading to hurt of sentiments
and feelings, the best course would be to lodge a complaint with
the Director or Commissioner concerned or with the Director
General or Chief Commissioner concerned or with the Member
(Investigation), In extreme cases, the action may lie in TORTS.
There, of course, it will have to be established that it was covered
by the immunity of sovereign act.
Q. 2 What remedies’ does the assessee have where during
search the assets are destroyed like sofas and beds’ are torn,
floor is dug and walls are broken?
Ans.No remcdy lies against such actions if they are done bona
fide and in good faith in carrying out the object of the search.
Action may lie only if these acts are done mala fide and there
was no reason to suspect that items broken or destroyed contained
any concealed income or assets hidden therein. Neither on the
basis of information received from the informer, nor from any
other source.
Q. 3 Can the assessee contract superior officer when search
is in progress to explain the difficulties being faced?
Ans.Yes, but the superior may not interfere with the judicial
discretion of the authorised officer, He may take administrative
action and such corrective measures as may relieve the assessee
of avoidable harassment and to make the search operation less
painful.

Q. 4 Whether can a legal advisor be present? if, yes, he do
when search is in progress?
Ans.Yes, he can be present. :
Q. 5 What remedy is available to a person whose cash has
been seized from the possession of his employee who was
carrying it in connection with business?
Ans.Such a person should immediately lodge his claim before
the authorised officer who has seized the cash and produce
necessary evidence to explain the source. If the proceedings under
section 132(5) have already been commenced, he should lodge
his claim under section 132(7). In case he does not succeed there
also, he may file an appeal under section 132(11) before the
Commissioner.
Q. 6 What remedy lies with regard to seizure of cash whose
sources are also explained?
Ans.Efforts should first be made to prevent the seizure because
once the seizure is made, Department may like to pass an order.
If the cash is wrongly seized, or for that matter, any asset is
wrongly seized, the authorised officer should pass an order under
section 154 to release such an asset. Provisions of section 132(i)
empower seizure of only such assets, which represent fully or
partly undisclosed income. Therefore, seizure of any assets, which
does not satisfy the basic condition, involves an illegality in the
act of seizure, which should be corrected by the officer as if he
has committed mistake of fact and/or of law apparent from record.
Since this kind of seizure would be without jurisdiction, it will
be a fit case for filing a writ petition under article 226 of the
Constitution.
Q. 7 Can assessee ask for identity card of officers?
Ans.Yes. Sometimes the authorised officers or the person
accompanying them do not possess the identity card. As an
alternative, they should carry and produce some other documents
to prove their identity, e.g, a certificate attesting their signatures,
The certificate should be issued by a senior officer in charge of

the search or by an immediate superior. In a case where there is
no proof of identity, the assessee would be within his right to
refuse the ingress.
Q. 8 Can assessee ask for a copy of warrant?
Ans.No. Warrant of authorisation is meant and addressed to
the authoriscd officer and it has to be executed by him. It is an
instrument to arm him with the authority to search. After execution
of the warrant, it is to be returned to the issuing authority. The
assessee is, however, entitled to go through the warrant. In fact,
the authorised officer is duty bound to produce it and in evidence
of production thereof, he may obtain the signatures of the assessee
or his representative along with the signatures of two witnesses.
The assessee should inspect it carefully to see that: (a) it is
not blank; (b) irrelevant portions are struck off, etc. If these defects
are found, he should bring them on record by filing a letter before
the authorised officer. If the warrant is blank and the name and
address is not correctly recorded, he may as well not allow the
ingress. In case of other defects, question of challenging the
validity under article 226 may be considered.
Q. 9 Can the authorised officer refuse permission to the
assessee or any other person to be present on his behalf during
search?
Ans.No. Sub-rule (8) of rule 112 provides that the occupant
of the building, place, vessel, vehicle or aircraft which is searched,
as also the person in charge of such vessel, etc., or any other
person on his behalf, shall be pen-nitted to attend during the search
and a copy of seizure memo prepared under sub rule (7) shall be
delivered to the occupant or to such other person.
Q. 10 Can the authorised officer enter and search any
building belonging to the assesee once the warrant of
authorisation is issued against him?
Ans.No, he can enter and search only such building in relation
to which the warrant of authorisation is specifically issued.





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