JUDGMENT R.M. Sahat, J.
1. Family feud between real brothers led to the filing of a First Information Report on October 3, 1970, by Chaturbhuj Das Maheshwari, for the theft of jewellery, against petitioner No. 1, his own brother, petitioner No. 2, wife of petitioner No. 1 and petitioner No. 3, their son-in-law. All of them were tried under Sections 379/411/424 of the IPC. On 14th July, they were acquitted and it was held that no theft of any property belonging to the informant took place from his room No. 77, Rani Mandi, Allahabad, and that he had not kept any valuables in his almirahs in the said house. The ornaments and jewellery (Exs. 1 to 82) were not proved to have been recovered from any hiding place from the house of Ganga Prasad or from the possession of Ram Gopal. In the operative portion of the order a direction was issued. The property Exs. 1 to 84 should be returned to Ganga Prasad under intimation to the I.T. authorities after the expiry of the period of appeal, if no appeal was filed. The criminal adven-
ture of Chaturbhuj Das, having miserably failed, he knocked at the door of income-tax department and is alleged to have sent a written complaint to the Govt. of India and the CIT, Allahabad, under the fake name of Dinesh Chandra Sahu that the petitioner was possessed of three hundred tolas of of gold, which he claimed, in the criminal proceedings, to have received in a family partition, but failed to disclose it or file any return under the W.T. Act. This set the ball rolling for proceedings under Section 132A of the I.T. Act, and it is the validity of these proceedings which is under challenge in this petition.
2. It appears, while the complaint of Sahu was still in the process of examination in the office of the Commissioner, a letter was received from the Under Secretary to the Govt. of India to make necessary inquiries regarding the evasion of wealth-tax by the petitioner. This letter along with the complaint, which was already pending in the office of the Commissioner, was forwarded by the IAC to the Assistant Director of Inspection (Intelligence), in charge of a cell maintained in the I.T. office for probing such matters, for investigation and report. In pursuance of it the Assistant Director summoned the petitioner and recorded his statement on oath on August 4. 1978. This statement is on record. It is in two parts. In the first, the petitioner was asked whether he was an assessee under the I.T. or the W.T. Act and whether the jewellery was seized from him and why. It was stated by the petitioner that he was not an assessee under either of the Acts because he was below the taxable limit. He admitted that the jewellery which was in the custody of the Chief Judicial Magistrate was seized from him on his brother's complaint who was inimical to him but he was acquitted. Then starts the second part which is headed, " Further ".
" Question.--What was the source of the property lying with Sri Ganga Prasad ?
Answer.--The property belongs to Sri Ganga Prasad's wife Smt. Raj Kumari, who received it at the time of her marriage in 1932. It consisted of about 100 tolas gross which would be worth about Rs. 30,000 to 35,000 (present value), (2) Sri Ganga Prasad received jewellery on partition of HUF (higher) in 1954 and that will be gross weight of 90 tolas which will have present valuation of about Rs. 30,000 to 35,000 (present value) by estimate. (3) His daughter, Prabha, was married in 1943 and she received at the time of marriage from her in-laws etc., about 90 tolas (gross) which would have value of about Rs. 30,000 to 35,000 (present value). The total value taken together is less than Rs. 1 lakh or round about Rs. 1 lakh. So no W.T. return was filed. Smt. Prabha was previously living with him (Ganga Prasad) and she died in June, 1970. "
3. After this the statement was closed and signed by Ganga Prasad. No further enquiry was made nor was the petitioner asked to substantiate these allegations. The Assistant Director, thereafter, submitted a report that the petitioner was not paying income-tax and action be taken against him. On this material, which is supposed to have been " information ", the Commissioner had reason to believe to take action under Section 132A. He, accordingly, issued a requisition to the ITO in Form No. 45 on October 18, 1978, to require the Chief Judicial Magistrate to deliver the assets of the petitioner which were in his custody. Being faced with this difficulty and left with no other alternative, the petitioner sought the protection of this court under Article 226 of the Constitution of India.
4. Before adverting to the main question, whether there was material on which the Commissioner could have reason to believe that the jewellery, which was in the custody of the Chief Judicial Magistrate, represented wholly or partly the undisclosed income of the petitioner so as to confer jurisdiction on him to issue an authorisation warrant for requisitioning the same under Section 132A, it would be better to have a glimpse of the legislative background in which this provision was enacted. In the Act of 1922, the only circumstance in which the Commissioner could authorise a search of any building or place tinder Section 37(2) was when he had reason to believe that books of account or other documents which may be found there, shall be useful in proceedings pending under the Act. In 1954, it was held by the Supreme Court in M.P. Sharma v. Satish Chandra, AIR 1954 SC 300, 306. " A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law." This power is thus given to assessing authorities for social security. Despite this the power to search remained confined to books of account and document only even when Section 37 of the Act of 1922 was replaced by Section 132 of the Act of 1961. But, due to enormous economic activity which increased the tendency to evade payment of tax, in order to devise ways and means to check it, Commissions were appointed which recommended a widening of the power of search and seizure. The Parliament, therefore, amended Section 132 in 1964, and power was conferred on the Commissioner to issue an authorisation warrant for the search of any building or place if he had reason to believe that any person was in possession of any article or valuable thing, including money, if it was disproportionate to his known source of income. In 1965, the section was amended further. In the objects and reasons appended to the bill it was said that the power of search and seizure was being enlarged enabling the seizure of only money, bullion, jewellery or other valuable article or thing, which represented either wholly or partly undisclosed income or property. The ITO was being empowered to retain such of the assets seized as he may consider necessary to satisfy the liability estimated by him and also in exceeding the liability under the direct laws, in respect of which the person concern-
ed was in default or was deemed to be in default. Sri R. K. Gulati, learned standing counsel, attempted to suggest that this indicated the anxiety of Parliament to widen the grounds on which the power to issue an authorisation could be exercised. We do not find any substance in it. By Sub-Clause (c), of Section 132 introduced since 1965, power was conferred on the Commissioner and the Director of Inspection to authorise a search in respect of bullion, jewellery, etc., as well, provided, it represented wholly or partly undisclosed income of the person in whose possession it was. The Act also conferred, for the first time, the power of seizure. The widening, therefore, was in respect of items in respect of which authorisation could be issued and to seize it. It did not expand the power in respect of the ground or the material on which it could be exercised. The 'section reads as under :
" 132. (1) Where the Director of Inspection or the Commissioner, in consequence of information in his possession, has reason to believe that... (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purposes of the Indian I.T. Act, 1922.(Act 11 of 1922), or this Act (hereinafter in this section referred to as the undisclosed income or property), he may authorise any Deputy Director of Inspection, Inspecting Assistant Commissioner, Assistant Director of Inspection or Income-tax Officer (hereinafter referred to as the authorised officer) to--
(i) enter and search any building or place where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept;......
(iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search;......
(v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing. "
5. In the course of time, it was felt that at times the jewellery or bullion or money may be in the custody of any officer or court. Therefore, in 1975, Section 132 was amended further**, the old Section 132A was renumbered as Section 132B and a new section was inserted as Section 132A. Sub-clause (c) of this section which is relevant is quoted below :
" 132A(1) Where the Director of Inspection or the Commissioner, in consequence of information in his possession, has reason to believe that...
(c) any assets represent either wholly or partly income or property which has not been, or would not have been, disclosed for the purposes of the Indian Income-tax Act, 1922 (Act 11 of 1922), or this Act by any person from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force, then, the Director of Inspection or the Commissioner may authorise, any Deputy Director of Inspection, Inspecting Assistant Commissioner, Assistant Director of Inspection or Income-tax Officer [hereinafter in this section and under Sub-section (2) of Section 278D referred to as the requisition officer] to require the officer or authority referred to in Clause (a) or Clause (b) or Clause (c), as the case may be, to deliver such books of account, other documents or assets to the requisitioning officer. "
6. From the legislative history given above, it stands out clearly that with passage of time the power to search has been widened and what was originally meant for procuring the account books only has been extended not only to articles or valuable things but to money, jewellery and bullion as well. It shall, however, be noticed that along with the extension of the power there has been a simultaneous circumscribing of limits in which the power could be exercised. From 1922 to 1964, the search could be made if the accounts or documents were useful in proceedings under the Act. In respect of articles or valuable things, the authorised officer could make an inventory only. It was in 1964, when the first inroad on a citizen's right in respect of things other than account books was made and it was provided that building or place could be searched if it was found that there was money, jewellery, etc., which was disproportionate to known source of income of the person in whose possession it was. When in 1965, bullion and jewellery were added to it and the power of seizure was conferred, it was further restricted by providing that the Commissioner or the Director should have reason to believe not only about the possession but that it represented wholly or partly an undisclosed income.
7. For action under Section 132 or Section 132A the conditions precedent, which must exist, appear to be :
(i) information in possession of Director of Inspection or Commissioner ;
(ii) in consequence of which he should have reason to believe; (iii) that any person is in possession of any money, bullion, jewellery, or other valuable article or thing;
(iv) and such jewellery, bullion, etc., must represent either wholly or partly undisclosed income.
8. If any of these conditions is missing, the officer concerned can have no jurisdiction to proceed. It may now be seen what is the import of each of these. Information as such presents no difficulty. But it is the foundation on which the entire structure is constructed. What its nature is has been made clear by the use of the words in consequence of which the Commissioner may have "reason to believe". It follows, therefore, that information must relate to conditions Nos. 3 and 4, so as to empower the authority concerned to reach the conclusion contemplated in condition No. 2. For instance, suppose the information is that a person is in possession of any article, jewellery, etc., can the Commissioner assume jurisdiction under this section ? No. Because the possession of a thing is not sufficient. The information must be such that the Commissioner may have reason to believe that it represents an undisclosed income of the person in whose possession it is,
9. " Reason to believe " is a common feature in taxing statutes. It has been considered to be the most salutary safeguard on the exercise of power by the officer concerned. It is made of two words " reason " and " to believe ". The word " reason " means cause or justification and the word " believe " means to accept as true or to have faith in it. Before the officer has faith or accepts a fact to exist there must be a justification for it. The belief may not be open to scrutiny as it is the final conclusion arrived at by the officer concerned, as a result of mental exercise made by him on the information received. But, the reason due to which the decision is reached can always be examined. When it is said that reason to believe is not open to scrutiny what is meant is that the satisfaction arrived at by the officer concerned is immune from challenge but where the satisfaction is not based on any material or it cannot withstand the test of reason, which is an integral part of it, then it falls through and the court is empowered to strike it down. Belief may be subjective but reason is objective. In ITO v. Lakhmani Mewal Das [1976] 103 ITR 437 (SC), the Supreme Court, while interpreting a similar expression used in Section 147 of the Act, held (at p. 446):
" The expression ' reason to believe' does not mean a purely subjective satisfaction on the part of the Income-tax Officer. The reason must be held in good faith. It cannot be merely a pretence."
10. The third and fourth conditions do not need any discussion. But it was argued by Sri Gulati that Sub-clause (c) of Section 132A contemplates an authorisation in respect of the assets and property. According to him, the requirement of representing wholly or partly undisclosed income applies to assets and not to property. He maintained that information that any person was in possession of " property " which was not disclosed was sufficient and if on that information, the Commissioner had reason to believe to issue an authorisation it could not be scrutinised by this court. The learned counsel wanted us to read Sub-clause (c) of Section 132 A as under :
" Any person is in possession of any property which has not been-or could not be disclosed for the purposes of this Act."
11. He urged that the word " property" was wide enough to include jewellery. Therefore, the clause relating to assets do not apply to it. We have carefully considered the argument and we are of opinion that it is misconceived. It is not based on any principle of interpretation or construction of a provision in an enactment. It is a figment of imagination unsupported by any authority or law. Section 132A is a provision empowering the authorities concerned to requisition jewellery or bullion in the custody of a court or an officer in respect of which the Commissioner or the Director of Inspection could proceed under Section 132. Neither Section 132 nor Section 132A deal with property. They are concerned with books of account or other document, bullion, jewellery or other valuable article or thing including money. The use of property in both the sections is in relation to these things. It is clear from the use of word "such" in Section 132 that it connects the things in possession with "undisclosed income". The first part describes the items in respect of which action could be taken and the second part places the restriction by providing that action could be taken only if, " such " bullion, jewellery, etc., represented undisclosed income or property. The word " property" has been used as an alternative to income. The entire Sub-section deals with money, jewellery and bullion, etc. It does not deal with property. The hollowness of the argument is further demonstrated by Sub-section (5) of Section 132, which specifically provides that assets in Section 132A mean jewellery, bullion, money, valuable article or thing.
12. As regards reading the sub-section as suggested by the learned counsel for the Department, suffice it to say that this is not borne out either by the legislative background in which this provision was enacted nor the context in which it has been used. While interpreting the provision its natural or grammatical meaning cannot be twisted, nor can it be distorted. There is no ambiguity which may impel us to depart from the normal rule of reading the section as it is, and to read it as suggested by the learned counsel.
13. The learned counsel then invoked the rule of presumption contained in Section 69A and urged that once the jewellery was found in the possession of the petitioner and he was the owner of it, a presumption that it represented undisclosed income arose and the burden on the petitioner was to discharge the same. And, as he failed to do so the authorities concerned had reason to believe that the jewellery represented wholly or partly undisclosed income. According to learned counsel, after the statement of the petitioner was recorded, which was examined by the Commissioner, who did not accept it, it was clear that the petitioner failed to discharge the burden. In any case, according to learned counsel, it was open to the Commissioner to accept or reject the statement and once he has rejected the statement the presumption incorporated in Section 69A arose and the petitioner who was owner of jewellery shall be deemed to possess it without paying any income-tax and, therefore, the notice issued was valid. We find difficulty in accepting this submission. Section 69A is part of Chap. VI, which deals with the aggregation of income and the set off or carry forward of loss. While aggregating the income of the assessee, it is open to the ITO to draw a presumption against him if he fails to explain money, etc., which is not recorded in the books of account maintained by him. This is a power conferred on the ITO, whereas the power to issue a requisition is conferred on the Commissioner or the Director of Inspection under Section 132 or Section 132A. Apart from it, this section could be availed of at the time of assessment only. The two stages of issuing authorisation and assessment are different. Section 69A is available in the latter proceedings only. If the section, as such or its principle, could be invoked at the stage of issuing notice it would result in a negation of the safeguard provided by " reason to believe". We, therefore, do not find any warrant for the submission that the notice could be held to be valid by virtue of Section 69A.
14. Coming to the facts of the case we may point out that in order to satisfy ourselves we sent for the record and examined the same with the assistance of Sri Gulati. We found that, apart from the statement of the petitioner and the complaint sent by Sahu, there was no other evidence or material on record. None of these, however, mentioned anything about the undisclosed income of the petitioner, We are of the opinion that from this, it was not possible to draw an inference that the jewellery, which was in the custody of the Chief Judicial Magistrate, represented wholly or partly the undisclosed income or property of the petitioner. In the absence of any material on this vital aspect we are of the opinion that there was no information, in consequence of which the Commissioner could have reason to believe as contemplated in Section 132A, nor could he issue any authorisation warrant. It was argued that the sufficiency of material was not a ground on which this court could issue a writ. The learned counsel submitted that once the statement of the petitioner was submitted to the Commissioner and he issued the authorisation warrant it amounted to a rejection of the statement that the gold belonged to his wife or daughter or it was received by him in the family partition. Consequently, there was no satisfactory explanation in respect of the gold which was in the custody of the Chief Judicial Magistrate and which was recovered from the possession of the petitioner. And as the petitioner, admittedly, did not pay any income-tax nor had filed any wealth-tax return, the gold in his possession represented wholly or partly the undisclosed income. The learned counsel emphasised that the information sent by Sahu, the recovery of the gold ornaments from the wall of the petitioner's house and the rejection of his statement recorded by the. Asst. Director, Intelligence, furnished the material and constituted the information on which the Commissioner proceeded under Section 132A and such action of the Commissioner is beyond the purview of Article 226. We are constrained to hold that in advancing this argument the learned counsel, did not appreciate either the restrictions in which the action could be taken under Section 132A or the power which this court could exercise under its extraordinary jurisdiction. It cannot be disputed that the complaint sent by Sahu itself was not sufficient to proceed under Section 132A. As regards the recovery of the jewellery from the wall, the learned counsel should not have relied on it as, this, no doubt, was the case of prosecution but the trial judge found it to be false, as is clear from his order which has been extracted in the beginning of this judgment. Coming to the statement recorded by the Asst. Director, the petitioner was not cross-examined at all. There was no material on record to establish that what was stated by the petitioner was incorrect. No opportunity appears to have been afforded to him to substantiate these allegations. In the absence of it, how the statement could be disbelieved cannot be understood. The Commissioner had jurisdiction to believe or not to believe, but, before he could exercise that power there should have been material on record to justify it. The statement of the petitioner was not controverted. What was stated by him was not inherently improbable. The Act does not contemplate an arbitrary exercise of power. It has to withstand the test of reason. The action of the Commissioner could be upheld only if it was reasonable. We are, therefore, of the opinion that the material on which reliance has been placed by the learned counsel did not individually or collectively furnish material on which the Commissioner could have reason to believe that the jewellery represented wholly or partly the undisclosed income of the petitioner. It was a case where there was no material which could form the foundation for taking action. We may also point out that although we had examined the record which clearly established that action of the Commissioner was contrary to Section 132A but we have based our decision on material which has been placed before us by the petitioner and opposite parties. If the argument of the learned counsel for the Commissioner is accepted then it would frustrate the entire objective behind the " reason to believe ". In Manju Tandon v. T. S. Kapoor [19783 115 ITR 473 (All), it was held by a Division Bench of this court, of which one of us was a member, that (at p. 486):
"......... if action has been taken by the public authorities without there being actual reasons to believe about the existence of relevant facts, such action is without jurisdiction and not merely an action which is within jurisdiction but suffers from an error of fact or law.........whether the grounds on which the belief is entertained by the authorities concerned are adequate or not is not a matter for the court to investigate and that the sufficiency of grounds which induces the authorities to entertain the belief is, therefore, unjustifiable. But then it is open to the person impugning the action to question the very existence of the belief and to contend that the authority actually did not entertain any such belief."
We are in respectful agreement with it.
15. Applying the principle of the decision we find that the Commissioner issued the authorisation warrant without there being any reason to believe that the jewellery which was in the possession of the petitioner represented wholly or partly his undisclosed income. Therefore, his action was without jurisdiction. There was no justification for him to proceed under Section 132A. We do not agree that it was a case where the Commissioner had jurisdiction.
16. Learned counsel for the Department relied on Sudarshan & Co. v. CIT (reported in [1983] 139 ITR 1032 (All)) and urged that the notice issued by the Commissioner in Form No. 45 was upheld by this court. According to him as the notice issued in this case was also in Form No. 45 it should be upheld. We confess our inability to appreciate the argument. Form No. 45 has been framed under the I.T. Act in which the authorisation by the Commissioner is issued. The mere fact that an authorisation has been issued does not amount to having " reason to believe " that the person against whom it was being issued was in the possession of jewellery or bullion which represented his undisclosed income. If it could be the interpretation, that the mere issuing of an authorisation warrant in Form No. 45 is sufficient, then the entire purpose of Sections 132 and 132A and the provision of formation of opinion in consequence of information become redundant, form No. 45 is follow up action as a result of formation of opinion in the circumstances enumerated. It is the formation of opinion and not the issuing of Form No. 45 which is fundamental. Moreover in Sudarshan's case [1983] 139 ITR 1032 (All) the search was made of the premises by the police authorities, on suspicion that they (sic) were in possession of stolen ornaments. As a result of the search a huge amount of gold, silver and cash was seized. While the proceedings were pending before the Chief Judicial Magistrate, the Superintendent of Police informed the I.T. authorities about the seizure of articles. The ITO appeared before the Chief Judicial Magistrate and sent information to the Commissioner that in the assessment years 1970-71, 1971-72 and 1972-73, the assessee was assessed only on Rs. 6,000. Taking into account the financial status of the assessee and the huge amount of gold, silver and cash seized from his premises, the Commissioner issued the authorisation warrant under Section 132A. The action of the Commissioner was upheld not because the authorisation was issued in Form No. 45 but because there was material on which the Commissioner had reason to believe that the cash, bullion and jevellery seized, represented wholly or partly undisclosed income.
17. In the result, this petition succeeds and is allowed. The authorisation warrant issued under Section 132A read with Rule 112B issued by Commissioner, Allahabad on October 13, 1978, to the ITO, Allahabad (C-Ward), for requsitioning the assets of the petitioner into the custody of Chief Judicial Magistrate, Allahabad, is quashed.
18. The petitioner is entitled to his costs.