ORDER R. D. SHUKLA, J. - This appeal is directed against the order dated June 26, 1996, of the learned single Judge passed in W.P. No. 736 of 1996 [Aakash Namkeen Pvt. Ltd. v. Commissioner of Commercial Taxes [1997] 105 STC 441 (MP)] whereby the petitioner-appellant's petition under article 226 of the Constitution of India challenging the action of the respondents in making certain search and seizure of the petitioner's establishment in exercise of their powers under section 45 of the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (hereinafter referred to as "the Adhiniyam" for brevity) has been dismissed in limine. 2. Brief history of the case is that a search of the petitioner-appellant's premises was made by respondent No. 2 on February 7, 1996 and February 8, 1996. Certain documents were seized and an amount of Rs. 5,00,000 was collected from the petitioner-appellant by cheque dated February 8, 1996 drawn on State Bank of Indore, towards penalty. After completion of search and seizure, a notice was issued to the petitioner-appellant for further scrutiny. The said proceedings are still pending. Meanwhile the appellant served a legal notice on March 26, 1996 (vide annexure P8) challenging the raid, search and seizure on grounds of its being arbitrary. The respondents sent reply on April 3, 1996 vide annexure P9. The petitioner-appellant without waiting for adjudication by the authorities filed the petition challenging the action as above. After hearing submissions of learned counsel for the petitioner, learned single Judge dismissed the petition in limine holding that the petitioner has an alternative and efficacious remedy of filing an appeal under section 61 of the Adhiniyam against any order passed under section 45 of the Adhiniyam is available. It was also held that final adjudication under section 45 would mean passing of an order under section 27 of the Adhiniyam, hence this appeal. 3. From a perusal of the record, it appears that a review petition was filed, vide M.C.C. No. 303 of 1996 on July 9, 1996. The same was also dismissed on August 9, 1996. During pendency of this review petition the present L.P.A. was filed on July 25, 1996. It appears that the fact of pendency of the review petition was not disclosed in the present L.P.A. 4. Contention of the learned counsel for the petitioner-appellant is that there was no valid formation of the committee. During pendency of this review petition the present L.P.A. was filed on July 25, 1996. It appears that the fact of pendency of the review petition was not disclosed in the present L.P.A. 4. Contention of the learned counsel for the petitioner-appellant is that there was no valid formation of the committee. No ground for search and seizure was made out. The raid was also wholly unauthorised and illegal. Since there was no assessment, there could not be any penalty and in absence of any assessment, the officer could not have accepted Rs. 5,00,000 towards tax. 5. As against it, learned counsel for the respondents Shri Zelawat submitted that there was valid constitution of the committee, the committee was duly authorised for conducting raid. There was sufficient material for the same. It has further been submitted that the assessee gave voluntary statement and made certain disclosures and offered Rs. 5,00,000 towards tax. It has also been submitted that there was false billing, lesser quantity of goods was shown to have been sold, but the actual sale was double the quantity of product shown in the bill. It has also been submitted that seizure of documents and statements made by the petitioner-appellant further justify the raid conducted by the authorities. Learned counsel for the State produced concerned file and statements of the petitioner-appellant for perusal of the court. 6. Section 45 of the Adhiniyam provides for constitution of the committee for detection and checking of evasion of tax by the dealers. The committee shall be assisted by the officers of the State Government. If upon any information the committee has reason to believe that the dealer has evaded payment of tax, it may draw its report and sent it to the commissioner. On receipt of such report of the committee, the Commissioner shall ask the dealer to produce before him accounts and registers. If on scrutiny of records or on inspection of his place of business, the Commissioner is satisfied that the dealer has evaded payment of tax, he may for reasons to be recorded in writing, seize such accounts, registers and documents of the said business. Sub-section (6) of section 45 provides about entry and search. If on scrutiny of records or on inspection of his place of business, the Commissioner is satisfied that the dealer has evaded payment of tax, he may for reasons to be recorded in writing, seize such accounts, registers and documents of the said business. Sub-section (6) of section 45 provides about entry and search. Sub-section (8) of section 45 further provides that the Commissioner while making entry, search and seizure under this section shall follow the same procedure as is required to be followed by a police officer in relation to the entry, search and seizure under the provisions of the Code of Criminal Procedure, 1973. 7. In this case the petitioner-appellant has not only challenged the power of the Commissioner as to search and seizure (in the absence of any report by the committee) but has further challenged the procedure adopted by the authorities and thereby has challenged the very jurisdiction. 8. The apex Court of this country in the case of Income-tax Officer v. Seth Brothers reported in [1969] 74 ITR 836 has propounded the following principles for dealing such cases : "Since by the exercise of the power under section 132 of the Income-tax Act, 1961, a serious invasion is made upon the rights, privacy and freedom of the tax-payer, the power must be exercised strictly in accordance with the law and only for the purposes for which the law authorises it to be exercised. If the action of the officer issuing the authorisation or of the designated officer is challenged, the officer concerned must satisfy the court about the regularity of his action. If the action is maliciously taken or power under the section is exercised for a collateral purpose, it is liable to be struck down by the court. If the conditions for the exercise of the power are not satisfied the proceeding is liable to be quashed. But where power is exercised bona fide, and in furtherance of the statutory duties of the tax officers, any error of judgment on the part of the officers will not vitiate the exercise of the power. If the conditions for the exercise of the power are not satisfied the proceeding is liable to be quashed. But where power is exercised bona fide, and in furtherance of the statutory duties of the tax officers, any error of judgment on the part of the officers will not vitiate the exercise of the power. Where the Commissioner entertains the requisite belief and for reasons recorded by him authorises a designated officer to enter and search premises for books of account and documents relevant to or useful for any proceeding under the Act, the court, in a petition by an aggrieved person, cannot be asked to substitute its own opinion whether an order authorising search should have been issued. Any irregularity in the course of entry, search and seizure committed by an officer acting in pursuance of the authorisation will not be sufficient to vitiate the action taken provided the officer has, in executing the authorisation, acted bona fide. The Act and the Rules do not require that the warrant of authorisation should specify the particulars of documents and books of accounts : a general authotisation to search for and seize documents and books of account relevant to or useful for any proceeding complies with the requirements of the Act and the Rules. It is for the officer making the search to exercise his judgment and seize or not seize any documents or books of account. An error committed by the officer in seizing documents which may ultimately be found not to be useful for or relevant to the proceeding under the Act will not by itself vitiate the search, nor will it entitle the aggrieved person to an omnibus order releasing all documents seized. The aggrieved party may undoubtedly move a competent court for an order releasing the documents seized. In such a proceeding the officer who has made the search will be called upon to prove how the documents seized are likely to be useful for or relevant to a proceeding under the Act. If he is unable to do so, the court may order that those documents be released. But the circumstance that a large number of documents have been seized is not a ground for holding that all documents seized are irrelevant or the action of the officer is mala fide. If he is unable to do so, the court may order that those documents be released. But the circumstance that a large number of documents have been seized is not a ground for holding that all documents seized are irrelevant or the action of the officer is mala fide. By sub-section (13) of section 132 the provisions of the Code of Criminal Procedure, 1898, relating to searches apply, so far as may be, to searches under section 132. Thereby it is only intended that the officer concerned shall issue the necessary warrant, keep present respectable persons of the locality to witness the search, and generally carry out the search in the manner provided by the Code of Criminal Procedure. But sub-section (13) of section 132 does not imply that the limitations prescribed by section 165 of the Code of Criminal Procedure are also incorporated therein. Where a warrant is issued in relation to a firm, the officer authorised thereunder is not restricted to searching for and taking possession of only those books of account and other documents which directly relate to the business carried on by the partners in the name of the firm. The books of account and other documents in respect of other business carried on by the partners would certainly be relevant because they would tend to show inter-relation between the dealings and supply materials having a bearing on the case of evasion of income-tax by the firm. Merely because the Income-tax Officers made a search for and seized the books of account and documents in relation to business carried on in the names of other firms and companies, the search and seizure would not be illegal. In the absence of anything to show that the documents seized were either replaced or tampered with, the irregularity of failing to place identification marks on several documents will not by itself supply a ground for holding that the search was mala fide : Held, on the facts, that in keeping police officers at the time of the search in the house of influential businessmen to ensure protection of the officers and the records, it could not be said that excessive force was used. In appropriate cases a writ petition may lie challenging the validity of action taken under section 132, even before the investigation pursuant to the action taken by the Income-tax Officers is made, on the ground of absence of power or on a plea that the proceedings were taken maliciously or for a collateral purpose. But normally the High Court in such a case should not proceed to determine merely on affidavits important issues of facts especially where serious allegations of improper conduct are made against public servants and the officers assert that they acted in good faith in the discharge of their duties. If the High Court is of the view that the question is one in respect of which an investigation should be made it should direct oral evidence to be taken." 9. It is noteworthy that the power of the Commissioner of Income-tax under section 132 of the Income-tax Act and power of the Commissioner under the Adhiniyam are almost similar. In this case mala fide and lack of jurisdiction have also been alleged. It was necessary to have obtained a reply from the other party. The apex Court in the case of Madhya Pradesh Industries Ltd. v. Income-tax Officer [1965] 56 ITR S.N. 18 has held as under : "Where, upon the issue of a notice under section 34 of the Indian Income-tax Act, 1922, a claim is made in a writ petition that the Income-tax Officer had no power to issue the notice and that the power is exercised not for any legitimate purpose for which it may be used, but for the purpose of making a fishing enquiry and to review a previous order made in favour of the petitioner, a rule upon the Income-tax Officer to show cause why the notice should not be set aside and an opportunity to him either to accept or to deny the facts and to set out such other material facts as have a bearing on the question is at least called for. When the party claiming relief challenges on oath the existence of the conditions which confer jurisdiction, and sets out facts which may, unless disproved, support his case, an order dismissing his petition in limine may not properly be made." 10. When the party claiming relief challenges on oath the existence of the conditions which confer jurisdiction, and sets out facts which may, unless disproved, support his case, an order dismissing his petition in limine may not properly be made." 10. In our considered opinion it was necessary for the single Bench to have obtained reply of the respondents as to the correctness and legality of the constitution of the committee and search and seizure made in consequence of the report of the committee. 11. Learned counsel for the petitioner-appellant referred to a case reported in [1966] 17 STC 305 (Mad.) (A. Appathurai Nadar v. Government of Madras) and submitted that the Act does not authorise department to receive any amount from a dealer as advance towards provisional or final assessment. 11A. Learned counsel for the State has justified raid and seizure and further submitted that the documents received during search and seizure further fortifies the view taken by the Commissioner without making search. Though it is true that material collected during search and seizure can also be taken into consideration for justifying action and for supplementing the material available prior to date of raid, search and seizure. But where challenge is made as to the very jurisdiction and procedure adopted, a reply was required to be obtained, and respondents could be asked to place material before them for taking such action. In our opinion, therefore, this was not a fit case for dismissal of the petition in limine. 12. In that view of the matter, it is not necessary to discuss other points raised. Parties shall be at liberty to raise all the points before the learned single Judge. The learned single Judge after hearing the parties may form his independent opinion as to the legality, propriety and necessity of raid including alleged payment of tax by the petitioner-appellant. We refrain from expressing any opinion on this point. 13. As a result, the appeal succeeds. Dismissal of W.P. No. 736 of 1996 [Aakash Namkeen Pvt. Ltd. v. Commissioner of Commercial Taxes [1997] 105 STC 441 (MP)] in limine is set aside. The case is remanded back to the learned single Judge for a decision in accordance with law. Parties shall appear before the learned single Judge on March 27, 1997. No further notice would be necessary. The case is remanded back to the learned single Judge for a decision in accordance with law. Parties shall appear before the learned single Judge on March 27, 1997. No further notice would be necessary. In the facts and circumstances of the case, parties shall bear their own costs as incurred. Appeal allowed.