( 1 ) THE petitioners Nos. 1 and 2, public limited companies, incorporated under the Indian companies Act,, 1956, and petitioner No. 3, a partnership firm, are allied concerns of Q. S. T. Groups of Kanpur and petitioner No. 4 is the manager, accounts, of the said group. On January 15, 1987, a search was conducted by the Income-tax Department at different places of Q. S. T. Groups including the premises of the petitioners and various account books were seized for which seizure a memo was prepared and issued to the petitioners. Admittedly, the Department retained the books for a period exceeding 180 days without obtaining the approval of the commissioner for such retention within the meaning of Sub-section (8) of Section 132 of the income-tax Act, 1961 ("the Act" for short ). Thereupon, the petitioners filed this writ petition praying that the retention of the books beyond 180 days is absolutely illegal and the respondents be directed to return the account books forthwith.

( 2 ) THEREAFTER, the petitioners made an application that the respondents started taking photostat copies from the account books illegally retained beyond 180 days. As no photostat copies or extracts were taken by the Department till the date of filing the writ petition, the petitioners stated that no prayer was made for issuing a direction to the respondents to return the photostat copies, extracts, etc. , and hence an amendment is necessitated, since the mischief has been done subsequently, The petitioners, therefore, prayed that they be allowed to amend the writ petition and incorporate a new prayer No. 5 in the petition as follows :

"prayer No. 5 : Issue a suitable writ, order or direction in the nature of mandamus directing the respondents to return the photostat copies, etc. , which has been taken by them after 180 days. "

( 3 ) IN their counter-affidavit filed by the respondents, it is stated that the petitioners never approached the Department to release the account books. However, it is stated that the seized books of account contained information and details regarding concealment of income and tax evasion by the petitioners to the tune of several crores of rupees. In para. 12 of the counter-affidavit, the respondents contended :

"however, the material which has been seized during the course of the search, which shows huge concealment of income to the extent of several crores of rupees, can always be utilised against the petitioners under the Act for the purpose of making assessment and for other proceedings under the Income-tax Act. . . "

( 4 ) IN para. 17 of the counter-affidavit, it is stated that even if the search and seizure is illegal, the documents found in search can always be used by the assessing authorities. Learned standing counsel, on behalf of the respondents, made an application dated January 5, 1987, during the course of hearing that the petitioners representative be directed to attest the photostat copies taken by the Department from the seized books and documents and an advocate commissioner be appointed to attest the same before the seized books and documents are released to the petitioners.

( 5 ) IT is expedient to dispose of the writ petition, the amendment application of the petitioners and the application of the respondents together by this order.

( 6 ) SO far as the main prayer of the petitioners that the respondents be directed to return the books of account which have been retained for more than 180 days without obtaining the approval of the Commissioner is concerned, I entirely agree with the petitioners, inasmuch as the respondents have no objection to the books being returned, nor can they legally claim right of retention of the seized books of account for more than 180 days without taking approval from the commissioner, as envisaged by Sub-section (8) of Section 132 of the Act. Already on December 21, 1987, we directed the respondents to return the books and papers seized on January 15, 1987, to the petition