Thursday 18 February 2010

Rights and Duties of Persons searched under Income Tax Act

Charter of Rights and Duties of Persons searched:

The following is the Charter of rights and duties of persons searched which has been reported in [1994] 208 ITR (St) 5.

Rights of the person searched:

To see the warrant of authorisation duly signed and sealed by the issuing authority.

To verify the identity of each member of the search party before the start of the search and on conclusion of the search.

To insist on personal search of ladies being taken only by a lady, with strict regard to decency.

To have at least two respectable and independent residents of the locality as witnesses.

A lady occupying an apartment being searched has a right to withdraw before the search party enters, if, according to custom, she does not appear in public.

To call a medical practitioner in case of emergency.

To allow the children to go to school, after checking their bags.

To have the facility of having meals, etc., at the normal time.

To inspect the seals placed on various receptacles, sealed in course of search and subsequently at the time of reopening of the seals.

Every person who is examined under section 132(4) has a right to ensure that the facts so stated by him have been recorded correctly.

To have a copy of the panchanama together with all the annexures.

To have a copy of any statement that is used against him by the Department.

To have inspection of the seized books of account, etc., or to take extracts therefrom in the presence of any of the authorised officers or any other person empowered by him.

To make an application objecting to the approval given by the Commissioner of Income-tax for retention of books and documents beyond 180 days from the date of the seizure.

Duties of the person searched:

To allow free and unhindered ingress into the premises.

To see the warrant of authorisation and put signature on the same.

To identify all receptacles in which assets or books of account and documents are kept and to hand over keys to such receptacles to the authorised officer.

To identify and explain the ownership of the assets, books of account and documents found in the premises.

To identify every individual in the premises and to explain their relationship to the person being searched. He should not mislead by impersonation. If he cheats by pretending to be some other person or knowingly substitutes one person for another, it is an offence punishable under section 416 of the Indian Penal Code.

Not to allow or encourage the entry of any unauthorised person into the premises.

Not to remove any article from its place without notice or knowledge of the authorised officer. If he secretes or destroys any document with the intention of preventing the same from being produced or used as evidence before the court or public servant, he shall be punishable with imprisonment or fine or both, in accordance with section 204 of the Indian Penal Code.

To answer all queries truthfully and to the best of his knowledge. He should not allow any third party to either interfere or prompt while his statement is being recorded by the authorised officer. In doing so, he should keep in mind that –

If he refuses to answer a question on a subject relevant to the search operation, he shall be punishable with imprisonment of fine or both, under section 179 of the Indian Penal Code.

Being legally bound by an oath or affirmation to state the truth, if he makes a false statement, he shall be punishable with imprisonment or fine or both under section 181 of the Indian Penal Code.

Similarly, if he provides evidence which is false and which he knows or believes to be false, he is liable to be punished under section 191 of the Indian Penal Code.

To affix his signature on the recorded statement, inventories and the panchanama.

To ensure that peace is maintained throughout the duration of the search, and to co-operate with the search party in all respects so that the search action is concluded at the earliest and in a peaceful manner.

Similar co-operation should be extended even after the search action is over, so as to enable the authorised officer to complete necessary follow-up investigations at the earliest.

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