( 1 ) THE petitioner M/s. Bafna represeated by its partner, has challenged in this writ petition the order dt. 6-3-1973 passed by the Incometax officer (Assessment 4) Circle II Bangalore under Sec. 132 (5) of the income Tax Act 1961 (hereinafter referred to as the Act by which a sum of Rs. 1 "lakh belonging to the petitioner has been retained.

( 2 ) ON the 6th of Decr. 1973 one Mahendra Kumar was carrying cash of Rs. One lakh when he was apprehended by the Central Excise Authorities at Salem near Valaypatty and the cash of Rs. 1 lakh found on the person of Mahendra Kumar was seized. On the 8th of Decr. 1972, the commr. of Income-tax for Mysore at Bangalore issued a warrant of authorisation under Sec. 132 (1) of the Act and Rule 112 (1) of the Income-tax rules, 1962 (hereinafter referred to as the Rules) to V. Kalyan Sundaram, i Income-tax Officer, Circle II Salem 4 to search and seize the money of m. s. Bafna Textiles, C. S. Street. Bangalore which represents, the income which has not been disclosed for the purpose of Income-tax Act and which he has reason to suspect is to be found at the Office of the Assistant Collector of Central Excise, Salem. In response to the aforesaid warrant of authorisation, the authorised officer seized Rs. 1 lakh from the office of the Assist. Collector of Central Excise, Salem. It is not disputed that though The cash of Rs. l lakh was seized by the Excise Authorities from the person of Mahendra Kumar that the said amount belongs to the petitioner. The petitioner's Advocate Shri J. Jeshtmal was addressed a letter by the Asst. Collector of Central Excise, Salem-7 on the 14th of Decr. 1972 whereby He was informed that Rs. 1 lakh seized from -Mahendra Kumar, bangalore by the Central Excise Officers of Salem has since been transferred to the Commr. of Income-tax, Bangalore on a warrant issued by him and that therefore further correspondence in that behalf should be , made with the Income-tax Department, Bangalore. The Income tax Officer, assessment-5 Circle II Bangalore issued a notice to this petitioner under s. 132 (5) of the Art read with Rule 112a of the Rules requiring it to explain the nature of the possession and the source of acquisition of Rs. one lakh seized by the Income tax Department. By letter of the petitioner's advocate dt. 8-1-1973, a reply was given to the aforesaid notice wherein it is stated that an amount of Rs. l lakh is available, as cash in the books of accounts seized by the Income tax Department and that therefore the said amount be returned to the petitioner. On the 6th of March, 1973 the Incometax officer Assessment-4 Circle II, Bangalore made an order under S. 132, (5) of the Act retaining the entire amount of Rs. l lakh on the ground that the tax liability of the petitioner is greater than Rs. 1 lakh. It is the said older that is challenged in this Court by the petitioner,

( 3 ) SHRI K. Srinivasan learned Counsel appearing for the petitioner, contended that the seizure of cash of Rs. l lakh in this case by the Incometax department is illegal and invalid and that therefore the impugned order made under S. 132 (5) of the Act is also illegal and invalid. To appreciate this contention it is necessary to set out sub-sees. (1) to (5) of S. 132 of the Act as follows : the warrant of authorisation was issued in this case by the commr of income-tax, Mysore at Bangalore on 8th. Deer. 1972, under S. 132 (1) (i) and (iii) of the Act and Rule 112 (1) of the Rules. The Commissioner can under sub-sec. (1) of S. 132, authorise an Income-tax Officer to search any building or place where he has reason to suspect that money is kept and to seize such money as is found as a result of such search. That power can be exercised by the Commissioner only when he is in possession of information from which he has reason to believe that any person is in possession of any money etc. , which, represents income or property which has not been disclosed for the purpose of the Income-tax Act, 1922 or the Act.

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