JUDGMENT
B.N. Kirpal, J.
(1) Rule D.B. As the question involved is covered by a Full Bench decision of this Court, we arc disposing of the writ petition immediately.
(2) An order under Section 132 was issued where after the business premises of the petitioner was searched. In respect of the assessment year 1984-85, an assessment order was passed on 31st March 1987. The same was challenged in appeal, but the appeal was dismissed on 5th January, 1988. A second appeal was filed to the Income Tax Appellate Tribunal (respondent No. 1). The petitioner also filed applications for adducing additional evidence. Vide an order dated 30th August, 1988 the said appeal was, however, dismissed. We are informed that an application under Section 256(1) has been filed pursuant to the said order dated 30th August, 1988. The petitioner then filed an application under Section 25(2)4 for recalling or rectifying the order dated 30th august, 1988. Vide an order dated 2nd February 1989, this application was rejected. Another miscellaneous application under Section 254(2) was filed on 13th March. 1989 and this was dismissed by the order dated 29th March, 1989.
(3) In the present writ petition the aforesaid orders passed by the various authorities have been challenged before us.
(4) As far as the assessment order and the order of the Commissioner of Income-Tax (Appeals) and the order dated 30 August, 1988 are concerned there is no question of our interfering with them in these proceedings under Article 226 of the Constitution. The assessment order has merged in the appellate order of the C.I.T. (Appeals) and that order has merged in the order dated 30th August, 1988 of the Income Tax Appellate Tribunal.
(5) There is an alternative remedy provided to the petitioner under the provisions of the Income-tax Act and the petitioner has availed of the same by filing an application under Section 256(1) of the Act.
(6) As far as the orders dated 2nd February, 1989 and 29th March 1989 are concerned, the contention of the petitioner is that the said orders have been passed without affording any opportunity to be heard in person and without any reasons being indicated in the impugned orders.
(7) This Court in Smart Pvt. Ltd. v. It at & another (182 Itr 384) has held that when an application has under Section 254(2) is filed, the applicant has to be heard before the application is disposed of and secondly, reasons for dismissal should begiven.
(8) In the present case, admittedly, the applicant was not heard when the said applications were disposed of, and nor do the impugned orders contain any reasons.
(9) The other contention which is raised in this petition is that the books of account and other documents which were seized by the respondents pursuant to the raid which was conducted under Section 132 of the Act on 23.7.1985 have not yet been returned. The contention of the petitioner is that no notice was ever served on the petitioner to the effect that any order under Section 132(2) had been passed for continued retention of the books; nor were an reasons communicated.
(10) Mr. Rajendra has place before us a copy of the letter dated 23rd April, 1990 informing the petitioner that an order dated 19th December, 1989 had been passed by the Commissioner of Income-tax for continued retention of the books. It is further stated in this letter that earlier approval of the Commissioner for retention of the books etc. up to 31st December, 1989 had been accorded, but the learned counsel is unable to bring to our notice a copy of any earlier letter written to the petitioner prior to 23rd April, 1990.
(11) Under sub-section (8) of section 132 the appropriate authority, namely, the Commissioner of Income-tax can order the retention of the books etc. for reasons to be recorded in writing. Against such an order which is passed the assessed has a right to file an application to the Central Board of Direct Taxes under Section 132(10). This right would become meaningless if the passing of the order under Section 132(8) is not made known to the assessed within a reasonable time and, what is more important is that the reasons for continued retention of the books are not communicated to the petitioner. Merely sending intimation to the petitioner that an order for continued retention of the books had been passed cannot give the petitioner adequate opportunity to exercise his right under Section 132(10). Unless and until the petitioner knows what are the reasons which have weighed for passing an order under Section 132(8), he cannot file a meaningful application seeking to challenge the said reasons which may have weighed with the Commissioner of Income-tax. In our opinion, therefore, when an order under Section 132(8) is passed it is imperative that the assessed should be communicated the order itself containing the reasons on which the said order has been passed. Furthermore, this order should be communicated to the petitioner within a reasonable time and as expeditiously as possible so as to enable the assessed to exercise his right under Section 132(10). In view of the fact that there has been a failure on the part of the respondents in informing the petitioner, within a reasonable time, of the passing of the orders under Section 132(8) and, furthermore because no reasons have been communicated to the petitioner, the continued retention of the books of accounts and the other documents are, in our opinion, not warranted.
(12) For the aforesaid reasons, we allow this writ petition. We quash the orders dated 2nd February, 1979 and 29th March, 1979 and issue a Writ of Mandamus directing the respondent No. 1 to hear and dispose of the two applications under Section 254(2) on merits and in accordance with law. We further issue of Writ of Mandamus to respondent No. 3 to return to the petitioner, within 3 weeks from today, the books of accounts and other documents which had been seized from the petitioner’s premises. Before returning the books and other documents the department will be at liberty, at their own costs, to obtain photo copies of the relevant entries the and documents and they should be attested by the petitioner’s representative as true copies. The petitioner will produce the returned documents and account books etc. as and when he is required to do so in accordance with law. The petitioner will keep the documents and other returned material in safe custody.
(13) It is not necessary to decide the validity of Rule 46-A for the view which we have taken.
(14) There will be no orders as to costs. Supreme Court Of India Present: M.H. Kania and S. Ranganathan, JJ. Suraj Bhan & ORS.-Appellants Versus Bharat Singh & ORS.-Respondents Civil Miscellaneous Petition No. 9031/1989 in Civil Appeal No. 770/1980 Decided on 4.10.1989 Constitution of India-Art. 136-Supreme Court Rules, 1966-Order Xvi, Rule 1, Explanation-C.M.P. for revocation of Special Leave Petition .- In Special Leave Petition . there was non-disclosure of the fact that the application for Certificate for leave to appeal to S.C. was refused by High Court as barred by limitation- Slp mentioning dismissal of application u/A. 133 by the High Court on the ground that it was not re-presented within a reasonable time after the papers were taken back by the appellant for removing the office objections-Whether it was a material non-disclosure or suppression ? (Yes, as it affects period of limitation to file Special Leave Petition as per order Xvi, Rule 1 Sc Rules) (Para 3)-Effect-Leave to appeal granted by S.C. revoked. Important Point Leave to appeal is liable to be revoked if there was non-disclosure of the fact in Special Leave Petition that application for certificate for leave to appeal to Supreme Court was refused by High Court as barred by Limitation. Judgment M.H. Kania, J.-This is an application (C.M.P. No. 9031/89) made by the respondents in the aforesaid Civil Appeal No. 770 of 1980 for revocation of the special leave granted under Article 136 of the Constitution pursuant to which the above Civil Appeal has been filed. The respondents to this application are the appellants in the aforesaid Civil Appeal No. 770/80 and we propose to refer to them as such. The appellants were defendants Nos. 3 and 4 in suit No. 196 of 1963 in the Court of Senior Sub-Judge, First Class, Delhi. The said suit was filed praying for a declaration that certain shops belonged to the plaintiffs and defendant No. 5