Sathiadev, J.
1. This application is preferred by the petitioner in W.P. No. 8843 of 1982. The writ petition was filed impleading not only respondents Nos. 1 and 2 herein, but also one SM. Swetharanyam as a respondent, who is the husband of the third respondent in this application.
2. The writ petition was filed to quash a notice issued by the first respondent dated October 18, 1982, and to restrain him from taking any steps thereof, pending decision of rights of parties in the partition suit O.S. No. 50 of 1982, Sub-Court, Devakottai.
3. The impugned notice was issued directing petitioner to furnish particulars in connection with the jewellery mentioned therein, and (i) to furnish a list of jewellery given for wealth-tax assessment; (ii) the reasons for the difference between the two; (iii) details for fresh acquisition and evidence for the same; and (iv) to identify the jewels given for wealth-tax purposes at the time of inspection on September 3, 1982 at Devakottai. The caption for the communication states 'Action under section 132 - M.R.M.SP. House, Devakottai.' This communication having been issued based on an earlier communication dated October 15, 1982 calling upon the petitioner to attend the office on October 28, 1982 with the required particulars, the petitioner has preferred the writ petition claiming that any decision in the partition suit already instituted would be a judgment in rem and would prevail over any presumption that could be envisaged under section 132(4A) of the Income-tax Act, and that the said section is ultra vires.
4. He has stated as follows in the affidavit :
The properties involved in the proceedings belong to one Subramania Chettiar, who died in 1937 leaving behind two sons Venkatachala Chettiar and Swaminatha Chettiar. Petitioner, V. Subramaniam and V. Lakshmanan, and third respondent were born to Venkatachalam Chettiar, and Swaminathan Chettiar, adopted third respondent, and the family continued to be joint. Extensive properties are scattered all over Tamil Nadu and also in Malaysia, and the second respondent, Swaminathan Chettiar, taking advantage of the old age of his elder brother, Venkatachalam Chettiar, is in complete control of the affairs of the family. On coming to know that respondents Nos. 2 and 3 are secreting movables apart from creating documents against the interests of the petitioner and his father and brothers, a partition suit was filed in this court on December 28, 1981 and an order was obtained in Applications Nos. 4440 to 4442 of 1981 for appointment of an Advocate-Commissioner to take an inventory of the properties in M.RM.SP. House, Sivan Koil North Street, Devakottai. In spite of it, on December 30, 1981, third respondent in writ petition had given a memo to the Advocate-Commissioner that he will not give the keys for taking an inventory. On March 5, 1982, this court passed an order enabling the Advocate-Commissioner to break open the lock and take an inventory, if co-operation is not extended by the concerned defendants. In the said suit, the first respondent took out Application No. 1133 of 1982 stating that he had information that there are certain unaccounted properties which had escaped attention and that he may be permitted to make a search and seizure under section 132(1) of the Income-tax Act and secured an ex parte order on March 24, 1982. Between April 5, 1982 and April 9, 1982 search was conducted and inventory taken by the Department. Petitioner suspects that it was a make-believe affair, in which on the request of the third respondent in the writ petition, the Department was duped in staging a so called search, in which very valuable jewels belonging to the family and several other assets were not properly accounted for. They are detailed in para 5 of the affidavit. Hence, the main point which arises in the writ petition is, whether 'pending civil litigation between coparceners, the presumption envisaged under section 132(4A) can prevail over evidence, and decide ownership of properties, which is subject to litigation ?' It is with these averments he had preferred the writ petition. Pending disposal of the writ petition, interim stay was granted on November 29, 1982, only till October 15, 1982.
5. In the counter-affidavit, the first respondent stated that to his knowledge, there had been no partition as required under section 171 of the Income-tax Act, and knowing that the premises have been sealed under orders of this court, Application No. 1133 of 1982 was filed seeking appropriate directions to enable the Department to proceed further in the matter, on the proceedings started under section 132 of the Income-tax Act. Only after securing an order dated March 24, 1982, the search was conducted, and later on, a further order was passed on June 25, 1982 permitting the Department to keep the keys of the sealed portion of the premises and the entrance in its custody till proceedings were completed under section 132. The Advocate-Commissioner was directed to finish taking inventory of the articles not listed. The proceedings pending in the High Court were directed to be transferred to the Sub-Court, Devakottai, to be dealt with by that court. An inventory having been taken in the presence of the Advocate-Commissioner and the parties, the deponent of the affidavit is in no manner interested in any of the parties to the suit. As for the vires of section 132(4A), it is only a rule of presumption for facilitating investigation and assessment; and as for the impugned notice, it is only a formal letter calling for further information, and no conclusion having been reached hitherto, nor the civil suit having been disposed of, the petitioner cannot take any exception to a further step being taken in the course of enquiry or in issuing the impugned notice, which cannot be treated as an order which is injected with any illegality, and, therefore, the writ petition requires to be dismissed.
6. Pending disposal of such a writ petition in which the first respondent having spelt out under what powers action has been initiated under the Income-tax Act and clarified about the nature of the communication sent which is impugned therein, this contempt application is preferred claiming as to how the first respondent had disobeyed the order of this court dated December 23, 1982 in W.M.P. No. 15612 of 1982, and hence, the respondents are liable to be punished.
7. In the affidavit filed in support of the application, it is stated as follows :
In the suit already instituted, specific allegations have been made that defendants Nos. 1 to 4 therein have secreted and are trying to secret large extent of valuable jewels and other income, and, therefore, appointment of a Commissioner was sought for, and that the petitioner had obtianed an order dated December 29, 1981 to take inventory in the family house at Devakottai. On October 30, 1981, the Commissioner had sent a report stating that the third respondent in the writ petition was not making available the keys of the premises. In the meanwhile, the first respondent had filed A. No. 1133 of 1982, and an order was passed by this court on March 24, 1982, directing the Commissioner to hand over the keys of the premises to the Assistant Director of Inspection, so that he may execute the warrant issued by the Commissioner of Income-tax under section 132. After referring to certain claims made, viz., that the contesting defendants were behind the stage-managed search, it is stated that the search already conducted was illegal, and intended only to benefit two persons, who are ranked as second and third respondents in the writ petition. Hence, pending the said proceeding, in W.M.P. No. 15612 of 1982, this court having ordered that the first respondent has to move the sub-court, Devakottai, for further directions, and in the event of himself not seeking for any direction, it will be open to the contesting parties to seek for appropriate direction with notice to the first respondent; on March 19, 1984, he had filed an application before the sub-court for appointment of a receiver and for directions for depositing the keys in the custody of the first respondent into court. At a time when the order of the sub-court was expected, on April 4, 1984, he received a trunk call from Devakottai informing him that on an alleged application given by the third respondent herein, the first respondent together with two officers have gone to the family house and opened it at 2 p.m. Immediately, he sent a telegram to the sub-court that he apprehends that in total disregard of the order of this court, action was being taken by the first respondent. Thereafter, he came to know that by opening the sealed premises, jewels and cash worth not less than Rs. 10 to Rs. 20 lakhs have been removed after the rooms were opened by respondents Nos. 1 and 2. In the absence of any fresh proceeding under section 132, the first respondent had acted without authority, and having been already directed by this court to seek directions from the sub-court for anything further to be done; the first respondent on his own having opened the seals of the rooms in the premises had committed gross contempt of orders of court. The search having been conducted between April 5, 1982, and April 9, 1982, the retention of the records for more than 180 days was illegal; and when the power under section 132 cannot continue beyond 180 days from the date of search, he had no authority under the said Act in entering the premises without the prior permission of the court.
8. First respondent would state that he is not interested in internecine quarrels between the members of the family and that on March 27, 1984, the third respondent herein, being the wife of the third respondent in the writ petition, asked for the release of her passport kept in the house and which was under prohibitory order, as she required it to join her husband in Malaysia. Then he would state in para 6 :
'In view of the directions in W.M.P. No. 15612 of 1982, in W.M.P. No. 13221 of 1982, in W.P. No. 8843 of 1982, I sought the opinion of the Department's Advocate at Devakottai, Sri RM. Veerappan, as to whether the request of Smt. Alagammai, the third respondent herein, could be complied with. Mr. R. M. Veerappan, Advocate, Devakottai, opined that the release and return of the passport to the third respondent herein, would not ion any way be in violation of the order of the High Court in W.M.P. No. 15612 of 1982.....'
9. Hence, on the the suggestion made by him, after securing an undertaking from her that she would produce it whenever required by the Department, it was released by opening the premises on April 4, 1984. The seal placed on room No. 27 was intact, and it was opened with key No. 6 in the immediate presence of the Head Clerk of State Bank of India and Shroff of Indian Bank of Devakottai. Passport bearing No. K. 044904 required by her was found in a brown leather wallet kept in the cupboard of black rosewood bureau. It was handed over to the second respondent herein with a request to hand it over to his daughter-in-law, who was then at Madras. The room was locked at 4 p.m. On April 5, 1984, an acknowledgement was obtained from the third respondent receipt of the passport. Hence, when action had been taken after obtaining the opinion of the advocate, it cannot be held that he had committed contempt of court. The direction of this court was only with reference to handing over the keys and seized goods, but as far as the passport is concerned, it was not one of the seized goods, and hence, on humanitarian grounds, the passport was taken out in the presence of independent and respectable witness. Then he deals with other averments made regarding various aspects of allegations against the Department which are not relevant for this application. Except room No. 27, no other room was ever opened, and no asset belonging to the family had been removed. During the search conducted in April, 1982, the Advocate-Commissioner, the petitioner, his brother and his advocate were all present. Whatever was found head been inventorised and forms part of the record. A copy of each of the inventories and panchanama had been given to the commissioner. Further, he would state :
'.... I submit that whatever was found and inventorised at that time is there even now, and there is no question of any unauthorised removal of any jewels and cash as deliberately, maliciously and falsely alleged by the petitioner .....'
10. Takings out the passport from the sealed room is a continuation of search already made, and therefore, there was no need to obtain a fresh warrant from any higher authorities under section 132. The passport was not a seizable item, and it will not and cannot be the subject matter of a partition suit, and it is personal document of the third respondent herein, and it having been handed over, only after obtaining the opinion of the advocate, the defamatory statement made by the petitioner are unwarranted. The stage for handing over the keys had not reached, as the search itself is not complete, because of the spate of court proceedings instituted by the petitioner and others. Permission from the Commissioner had been already obtained under section 132(8) for retention of the seized books. The allegation that valuable jewels and cash of not less than Rs. 10 to 20 lakhs had been removed is untrue and motives had been unnecessarily attributed without any basis. If an inventory is taken now, it would reveal that no article has been removed by the by the income-tax authorities after the search operations. Hence, he had not committed any contempt of orders of this court.
11. He also filed W.M.P. No. 16326 of 1984, for appointment of an Advocate-Commissioner to take an inventory of all the articles that are in the nine rooms of M.R.M.SP. House, against which prohibitory orders under section 132(3) of the Income-tax Act had been passed. This was evidently filed to get over the allegations made that Rs. 10 to 20 lakhs worth of jewellery and other valuables have been removed, by entering the premises illegally on April 4, 1984. Hence, on March 1, 1985, an Advocate-Commissioner was appointed to take an inventory, and he has submitted his report and certain objections have also been filed.
12. This contempt application having been filed pertaining to an order passed in W.M.P. No. 15612 of 1982, it is necessary to first find out the nature of relief asked for therein. This W.M.P. was filed by writ petitioner asking for extension of stay granted on October 29, 1982. This petition was filed on December 16, 1982, by making reference to an order passed on November 8, 1982, in W.M.P. No. 13221 of 1982, which was petition filed for stay of further action being taken pursuant to the impugned order. On the writ petition being taken pursuant to the impugned order. On the writ petition being admitted on October 29, 1982, interim stay was granted only up to November 15, 1982. It was again extended on December 8, 1982, till January 8, 1983. The intention of the court in limiting the order of stay was to prevent undue advantage being taken by a mere order of interim stay being passed; and thereafter, the petition would never come up for heating. It is on such an order passed that the first respondent had filed the counter. Thereafter, the petitions have appeared in another list. In the counter, a claim having been made that the petitioner was asked to be present in his office for inspection on October 30, 1982, it is contended by the petitioners that on that day, even though he himself and his brother had gone, the first respondent having gone out, and no inspection of records having been granted, and as the Christmas vacation of this court had been extended beyond the usual duration, he had asked for extension of the order of stay. In those circumstances, the order dated December 23, 1982, came to be passed, taking not of the stand taken by learned counsel for the first respondent that the impugned notice was not issued under section, 132(4A), and it was purpose of receiving information, and that parties could make inspection and submit their representations, so that there need not be any further delay in handing over the seized articles.
13. Learned counsel for the petitioner submitted that there cannot be a presumption drawn at this stage that the family was a Hindu undivided family. Then, on the submissions made by the respective counsel, this court felt that further action under the provisions of the Act was require to be taken, and therefore, the petitioner and respondents Nos. 2 and 3 could have inspection of the seized articles on any of the days beginning from January 5, 1983, and ending with January 14, 1983. Even any other member of the family interested was also permitted to avail of the facility of inspection. Then in the last paragraph, it was ordered as follows :
'On the aspect of handing over of the seized good and the key of the premises, under section 132 of the Act, it is for the first respondent to move the Sub-Court, Devakottai, in O.S. No. 50 of 1982, and according to orders obtained, proceed further with the matter. In the event of the first respondent not seeking for directions, then as above stated, it is open to any of the parties to the suit to seek for suitable directions, with notice to all parties in the suit, and in particular, the first respondent.
The order of stay granted in W.M.P. No. 13221 of 1982 would enure to the petitioner only till January 15, 1983, and no further. To this effect, this petition ordered.'
14. It is by relying upon this portion of the order that the petitioner claims that the respondents have committed contempt of orders of this court.
15. In the counter-affidavit, the first respondent admits that on April 4, 1984, he opened room No. 27, with key No. 6, in the presence of two withnesses and took out the passport of the third respondent herein and handed it over to her father-in-law on humanitarian grounds. On March 27, 1984, she having requested for the release of the passport, he took the opinion of the Department's advocate at Devakottai, who opined that taking out of the passport would not be a violation of the order of this court and hence could be released to her.
16. This stand taken by him clearly shows that he was fully conscious that he was confronted with an order of this court and that he cannot open the rooms. Hence he had take the opinion from the Department's advocate at Devakottai. Nothing precluded him from approaching the Department's advocate at Madras, who had appeared in the matter, and having his office only 1/2 a kilometre from standing counsel's office. All along, he had been approaching only the counsel at Madras in the conduct of these proceedings and taking guidance from time to time. Taking a legal opinion would not help ab authority to claim that he had not countersigned an order of the court. In spite of being fully aware that there are litigations between the parties, and claims and counter-claims are put forth against each other involving several lakhs of rupees; and himself having moved this court after the institution of the suit for permission to take action under section 132, and conducted search only under orders of this court granted on March 24, 1982, and also asked this court as early as October 6, 1982, for permission to taken under section 132(5) of the Act had been started; he was thus holding the key under order of court. His exercising power under section 132 was not independent of the direction of this court, because it was he who filed Application No. 1133 of 1982 for permission to execute the warrant issued by the Commissioner, and only after securing orders of this court, action could be taken under the Act. These circumstances form the background for what had been done by him.
17. Learned counsel appearing on his behalf would state that he had done it with good intention; and having obtained orders of the Commissioner the time limit under section 132 cannot be applied; and in any event, except for the passport which is not a seized item, no other inventorised valuable having since been found to be missing, the petitioner with a view to protract the proceedings and with ulterior motives, has filed this contempt application, knowing quite well that the order of stay was no longer available to him. It is a device adopted to secure what he could not get in the stay petition, and thereby prevent the authorities from pursuing action based on the impugned communication
18. Learned counsel for the petitioner in dealing with the point relating to interference in the process of court, its disobedience, and as to how far legal opinion obtained would not help a contemner, refer to the following decisions :
Dibakar Satpathy v. Hon'ble the Chief Justice & judges of the High Court of Orissa : [1962]1SCR326 is a case wherein a circular of was issued by the Legal Remembrancer to the District Magistrates referring to an alleged confusion created by the High Court in a particular case. Legal Remebrancer gave an opinion taking into account the decision of the Orissa High Court, which according to the High Court, was something ambiguous and did not deal with all questions, consequential and ancillary. In spite of it, the Under Secretary to Government having issued a direction to District Magistrates to ignore the decision of the High court, even though that was binding on them had committed flagrant interference with the administration of justice, and hence held that it would be a clear contempt of the court. Hence, as pointed out therein, a legal opinion whatever be its nature could not be a defence since the authority invested with power has to take a correct decision.
19. In Kruthiventi Kutumba Rao v. Muthi Venkata Subba Rao, : AIR1969AP47 , a Division Bench held that parties to the suit and who have notice of the same will be liable for contempt or disobedience or for obstructing execution, whether the order is valid or irregular. Unless it is vacated, it has got to be obeyed.
20. The High Court v. S. K. Mathur, CIT deals with a case wherein an Income-tax Officer being confronted with directives of the superior officer and an order of court, was held to have committed contempt of court for not having obeyed the stay order passed by the court, which she was aware of. As for the Commissioner, He was held guilty of having committed contempt in persuading his subordinate to pass as order under section 132(5) and according approval to it, in spite of being conscious of the order of the court.
21. In A. T. K. Sahakari Sanstha, Nagpur v. State Of Maharashtra [1877] Cri. L.J.1809 it was held :
'...... A mistaken advice given by a counsel coupled with the conduct of the contemner might, in the circumstances of a particular case, give rise to sufficient cause for acting in particular way, bona fide and in good faith, though there is certainly no general doctrine which saves a party from the consequences of wrong advice...Nobody can be permitted to disobey the order of the court by putting forward someexcuse, including an excuse based on wrong legal advice...'
22. These decisions go to show that when an authority is aware of the nature of the order passed, taking a legal opinion would not save him, if what had been done is disobedience of the order of the court. If only the standing counsel at Madras whom he had been contacting had been asked about the request made for opening the sealed room, it would have enabled the Department to move this court by one more application. After all, in this writ petition, several applications have been filed, and there could have been no difficulty in obtaining orders of this court. The standing counsel would have told him that he cannot open the seals room and hand over any article, whether seized or not seized, without prior orders of court. The intention in passing the order was that when parties are in and around Devakottai, it would be in their interest to secure orders of that court, for whatever they may need. It was not confined only to the handing over of the seized goods and the keys of the premises. All the parties before this court had understood as to why they have thought it fits to move the sub-court, for suitable directions, as and when required. If parties required any direction, it was obligatory on their part to compulsorily serve the first respondent, so that no coleuses order could be obtained to defeat the interests of the Department. It was only after obtaining permission of this court on March 24, 1982, that he took action under section 132, and on the order of the court, 2 keys were handed over by him, and later he filed an application on October 6, 1982, for retention of the other keys. His headquarters was only at Madras. There was no need to approach a lawyer at Devakottai and thereby avoid informing the standing counsel at Madras of what he was doing which did not form part of a section 132 action at all. The department was not interested in getting at the passport on April 4, 1984, under section 132. The counsel who gave the opinion had written on April 6, 1984, that he does not have either a bare Act or with commentary, a book on Income-tax Act. On this, comment is made by counsel for the petitioner by stating that it is self-evident that he has given the opinion to help defendants in the suit. The opinion of the counsel is a wrong one, and hence it cannot ne a shield for the first respondent. There is, therefore substances in the plea that the first respodent has knowingly acted in convert with respondents Nos. 2 and 3 in the writ petition, in opening it on April 4, 1984.
23. Hence, by opening without prior permission of this court or sub-court, by heading over a document which was in the sealed room, the first respondent had committed disobedience of the order of this court.
24. Even though this would suffice to dispose of this application, yet as Mr. Ranganathan had dealt with other points, for completion of records, they are referred to. The first contention is that the opening on April 4, 1984, was not confined only to room No. 27 but other rooms have also been opened, and valuables worth Rs. 20,00,000 in the form of jewellery, silverware and other valuables, etc., have been removed; and that it had been done by the first respondent to help and aid the third respondent in the writ petition. It was when such an allegation was made that it resulted in an Advocate-Commissioner being appointed at the instance of the Department which wanted to show that no valuable which had been inventorised earlier, is now missing. Even in taking inventory, there had been protracted proceedings, and ultimately, the Commissioner had submitted his report. In short, he had stated in court that whatever inventory lists had been handed over by the Income-tax Department, in taking re-inventory he had found all of those items listed in such of those lists handed over by Department to him. He would state that he had not been handed over all the inventory lists, but only truncated lists. In the counter-affidavit file by the first respondent in W.M.P. Nos. 6326 and 19071 of 1984, he had stated as follows :
'...In view of the litigation, the Department was not able to complete the search and hence the unaccounted jewellery, valuables and silverwares have not yet been actually seized. At the time of seizure of all the unaccounted jewellery, valuables and silver articles, again a fresh inventory will be made of them. As far as the other documents found during the search, they were merely inventorised, but not seized, since they were not relevant for the purposes of the Income-tax or Wealth-tax Acts. Such documents were left behind in the premises of M.RM.SP. House, which was under the custody of the Advocate-Commissioner, as per the orders of court... After the search, prohibitory order was issued with respect to 8 rooms and the main door. At the request of the Advocate-Commissioner, a prohibitory order with respect to the main door was lifted, and the two Godrej keys to the Godrej locks, which were used for closing the main door with the chain fastened to it by the Advocate-Commissioner for purposes of identification, were handed over to the Advocate-Commissioner on July 3, 1982. ......
A perusal of the report of the Advocate-Commissioner would clearly indicate that not a single item of valuables kept under prohibitory order was found missing at the time of inventory taken by the Advocate-Commissioner........
As far as the documents that were inventorised but not seized, and left in the premises itself, the Department cannot be held to be liable or responsible, if any such document is found to be missing, since after the search, the premises itself was under the custody of the Advocate-Commissioner and not with the Income-tax Department.....'
25. Learned counsel for the petitioner would still contend that, on an analysis of the report of the Advocate-Commissioner, it could be seen that very many valuable items had not been initially inventorised for obvious reasons, and some of them which should be there are not traceable at all. Instead of referring to each one of the items, only a few important items referred to by him are considered herein.
26. He refers to absence of nearly 150 F.D. Rs. and that their outer covers alone were found in one of the rooms. First respondent would state that all the F.D.R.S. have been inventorised in the original search made on April 7, 1982, as per annexure A to panchanama; and they could be easily verified at any time through banks. About a broken qural malai, it is admitted by the first respondent that it was found only in the present inventory and taken note of. Similar comment is made regarding a gold watch weighing 6 grams found in the present inventory, and therefore, the first respondent would state that it will be taken note of, since search is not complete. Another comment regarding total weight of gold is that it is not mentioned in 1982 list; but as the Advocate-Commissioner had certified that whatever had been inventorised earlier by the Department are not missing; excess gold, etc., now found will certainly be taken note of at the time of assessment. Therefore, the inventory made in 1985 had resulted in more valuables being identified. Hence, there is no question of any inventorised article missing. Yet what is contended is that these have been planted in the room of Mrs. Ranganathan. It has to be taken out from other rooms, and, therefore, the first respondent had aided third respondent in his avariciousness to unjustly enrich himself. This is an aspect to be decided in the suit. The contesting parties would have ample opportunity to prove the correctness of such claims. In a petition of this nature, more than by appointing an Advocate-Commissioner to find out as to whether any valuables already inventorised are now missing or not, it will not be proper to go into these aspects, which are left out to be considered in the suit.
27. The other contention is that the first respondent cannot exercise his powers indefinitely under section 132. Even though Mr. Ranganathan was told that this is not an aspect which could be gone into in this application, he had placed before us the following decisions.
28. In Director of Inspection of Income-tax v. Pooran Mal & Sons : [1974]96ITR390(SC) , it was held that the period of limitation is one intended for the benefit of the person whose property had been seized, and it is open to him to waive it, and 'that the period of 90 days which is mentioned in section 132(5) is an immutable one', and if so held it 'would cause more injury to the citizen than to Revenue.'
29. In dealing with the scope of section 132(3) and in upholding its validity, it was held by a Division Bench of this court in I. Devarajan v. Tamil Nadu Farmers Service Co-op. Federation : [1981]131ITR506(Mad) , that, if in any case any person whose assets are subject to attachment, satisfies the court that, under sub-section (3) the power had been utilised to continue the attachment indefinitely, then the affected party can move the court. It was further held that the time limit under sub-section (5) cannot be imported into sub-section (3).
30. In Pooran Mal v. Director of Inspection (Investigation) Income-tax : [1974]93ITR505(SC) , while upholding the validity of section 132(1) and (5), it was held that even though a search and seizure may be in contravention of it, still the materials obtained thereby are liable to be used by the Department.
31. Commissioner of Commercial Taxes v. Ramkishan Shri Kishan Jhaver : [1967]66ITR664(SC) , deals with issue of a defective search warrant under the Sales Tax Act, and it has no relevance to the facts of this case.
32. He also finally refers to the recent directives issued regarding searches and seizures, laying considerable emphasis on the time-limit of 120 days from the date of seizure for estimating the undisclosed income and quantifying the amount of tax on income so estimated along with interest and penalty, being accomplished by making summary assessment by the Income-tax Officers.
33. The first respondent has produced during the course of one of the hearings, the approval obtained from the Commissioner to extend the time; and due to protraction of proceedings, the search still continues, and hence the reliance placed on these decisions could be of no avail to the petitioner in making the claim that he has become 'functus officio'.
34. As for the second respondent, he was a party to the earlier order, and he knew quite well about the restriction put on taking out any of the articles or goods from the sealed rooms. It was he who was in physical occupation of the other portions of the house. He was aware that his daughter-in-law had wanted the passport to be taken out, and he received it from the first respondent on her behalf. Hence, he had also committed disobedience of the order of the court. Nothing prevented him from moving the court below or this court, wherein he has been impleaded as a party to the proceedings. The court below would have told him to move this court, being aware of the nature of the orders passed hitherto in the writ petition. Hence, he has also committed contempt of court.
35. Though Mr. Ranganathan, learned counsel for the petitioner, would state that, as held in The High Court v. S. K. Mathur , a punishment of detention in civil prison should be imposed because huge amounts had been taken out; and as held in Dy. Director of Inspection v. Vinod Kumar Didwania : [1986]160ITR969(SC) , value of goods lost must be recovered; on the finding now rendered, and leaving it for the parties to agitate in the suit, regarding alleged removal of valuables, this is a case which calls for a similar approach to be made, as done by the said court, as against the Income-tax Officer. Hence, interests of justice would be met by administering a stern warning to respondents Nos. 1 and 2 herein that any lapse of the like nature on their part in future would be severely dealt with.
36. As for the third respondent herein, she was not a party to the writ petition, and evidently it is the third respondent in the writ petition, her husband, who had been instrumental in making the application, but he had not been impleaded as a respondent herein, and, therefore, there is no need to hold that she was aware of the nature of the order but still secured the passport. Hence, she is exonerated.
37. It is because of the first respondent opening the premises that he had brought about the present situation leading to serious claims of loss to estate being made, which now leads on to a long drawn litigation between the family members. Lot of court's time had been taken and parties have spend considerable sums due to his improper acts. Hence, the remuneration of the Advocate-Commissioner is fixed at Rs. 1,500. This sum and other expenses incurred by him to be shared equally by respondent Nos. 1 and 2. Regarding handing over of keys he has to await orders in other applications filed by contesting parties in the writ petition.
38. Hence, this application is ordered with costs as against respondents Nos. 1 and 2, but dismissed as against the third respondent.