( 1 ) THE writ petitioner a partnership firm is an assessee under the provisions of the Income-tax Act, whose premises, it appears, was surveyed as on 22-6-2006 by Sri p. S. Nagaraja, Income-tax Officer, Ward I (1)in terms of the authorisation issued in his favour by the Joint Commissioner of Income-tax, range-II, Mysore exercising his power under Sec. 133-A (i) of the Income-tax Act, 1961. ( 2 ) IT appears the survey lasted for not less than 12 hours in the premises during the course of which the Income-tax authorities claim that they came across voluminous documents, books of accounts and other incriminating material, which in their opinion was required to be processed further and as such impounded all the documents in terms of the list appended to the impugned order of even date, copy of which is produced as Annexure-"c" to the writ petition. ( 3 ) THE Income-tax Department having not returned the impugned documents even after several requests were made by the petitioner and more than five months having elapsed after the impounding the petitioner has approached this Court praying for issuance of a writ in the nature of certiorari and for quashing the impugned order at Annexure-"c" and holding that the entire proceedings of survey conducted as on 22-6-2006 at the premises belonging to the partnership firm was not in accordance with law and that it was not duly authorised; that the respondents-Income-tax authorities have no power to take away valuable things such as title deeds of immovable properties and other stamped documents; that such impounding is not permitted under the provisions of Section 133a (4) of the Act; that the communication dated 4th August, 2006 indicating that the retention is authorized up to 31-12-2007 by the Chief Commissioner of income-tax, Bangalore-Ill is not permitted in law; that such authorisation, if any, should be quashed by declaring it as null and void and for other consequential reliefs in the context. ( 4 ) NOTICE having been issued to the respondents, the respondents have entered appearance through their counsel and have also filed their statement of objections. ( 4 ) NOTICE having been issued to the respondents, the respondents have entered appearance through their counsel and have also filed their statement of objections. ( 5 ) IN the statement of objections, the action taken is sought to be defended very stoutly by drawing my attention to the relevant statutory provisions that not only the officer who has conducted the survey had been duly authorized, but the continued retention of the documents also having been properly permitted by the Competent Officer namely the Chief commissioner of Income-tax, Karnataka ; and the respondents having come across considerable material of incriminating nature to indicate that several persons who are having transaction with the petitioner have indulged in evasion and suppression of facts, the matter was required to be investigated further and particularly when the provisions of the Act permit such continued retention subject to the proper authorisation by the competent authority and the said authorisation having obtained there is no illegality in retaining the document; that the impugned action is sustainable in law and have therefore sought for dismissal of the writ petition. ( 6 ) THE jurisdiction of the Officers who conducted the survey and the Officers retaining the document is also sought to be asserted and is contended to be in consonance with the provisions of the Act; that the continued retention is attributed to the non co-operation on the part of the petitioner namely Sri. S. Paniraj, as it is mentioned at Paragraph 11 of the statement of objections that the said Sri. S. Paniraj even when asked to explain the nature of the transaction contained in the several documents that have been impounded, he was not in a position to give proper explanation of the nature of the transaction; that the documents related to the agreements/sale deeds for transfer of properties between parties other than Mr. Paniraj and M/s. Raj and raj investment and instead of co-operating with the department by giving full information about such other parties, the petitioner firm and the said Sri. Paniaj are insisting on return of the documents, and such non co-operation on the part of the said Paniraj is also indicated as a justifiable circumstance for further retention of the documents. ( 7 ) I have heard Sri K. S. Hanumantha Rao, learned counsel appearing for the petitioner and Sri. Aravind, learned counsel appearing for the respondents. Paniaj are insisting on return of the documents, and such non co-operation on the part of the said Paniraj is also indicated as a justifiable circumstance for further retention of the documents. ( 7 ) I have heard Sri K. S. Hanumantha Rao, learned counsel appearing for the petitioner and Sri. Aravind, learned counsel appearing for the respondents. ( 8 ) WHILE the submission of Sri. K. S. Hanumantha Rao, learned counsel appearing for the petitioner is that the very authorisation is not proper; that the person who is not duly authorised has conducted the survey; that what has been seized is certain documents pertaining to the transaction of petitioner-partnership firm, whereas the authorisation was in respect of the premises of Paniraj ; that these two persons are distinct legal persons for the purpose of Income-tax Act as both are assessed to tax separately and have separate permanent account numbers; that even the existing authorisation for continued retention of the documents has not been properly done; that the authorisation is not in favour of the officer who has impounded the documents at the premises and in respect of the very documents, the subject-matter of impounding in the survey conducted as on 22-6-2006; that in the light of such glaring inconsistencies and this anomaly being obvious even on a perusal of the records also, the writ petition has to be allowed, the impugned order has to be quashed and the respondents have to be directed to return the impounded documents forthwith. ( 9 ) ON the other hand, Sri. ( 9 ) ON the other hand, Sri. Aravind, learned counsel appearing on behalf of the respondents has vehemently urged that action taken is a bona fide action; that the respondents were conducting such surveys in respect of many other persons in real estate business; that the survey at the premises of the petitioner in fact has yielded a wealth of information leading to further detection of deliberate suppression of income on the part of many other persons involved in real estate business; that for the said reason, the documents have been retained; that the action taken is wholly within the permitted powers of the Income-tax authorities under the provisions of Sec. 133-A, particularly the act of initial retention being now authorised by the provisions of Sec. 133-A (3) (ia)and further retention under proviso (b) to Sec. 133-A (3) (ia) of the Act, no exception can be taken for the continued retention; that action having been followed up in respect of other persons whose names figured in the documents that have been impounded from the premises of the petitioner, he cannot insist for return of the documents henceforth and therefore urged for dismissal of the writ petition itself. ( 10 ) THE original records of the office of the Joint Commissioner of Income-tax who has authorised the survey and the records of the Chief Commissioner of Income-tax, Ban-galore-3 who has permitted the continued retention of the documents are also placed before the Court. ( 11 ) ONE submission of Sri K. S. Hanumantha Rao, learned counsel for the petitioner with reference to the record is that as per the instructions of his client, the original authorisation to which his client had subscribed his signature was only in respect of S. Paniraj and the later additions like real estate agent and Raj and Raj Investments are insertions which were not in the original authorisation that S. Paniraj is not a real estate agent, he is only doing business in money lending; that it amounts to gross misuse on the part of the respondents to distort the records before placing them before this Court and as such misuse also calls for drastic action against them. Though, the learned counsel for the petitioner would assert that the petitioner is prepared to place an affidavit on record to this effect, the point regarding subsequent insertion having been raised only during the course of arguments, it is not necessary to examine this contention any further. Be that as it may, even if the legality of the action taken is scrutinized applying the strict standards of compliance with the statutory provisions particularly in the background of the fact that the impugned order is an invasion into the rights of the petitioner and is an invasion of the privacy of the citizens, I find that the justification for continued retention of the document though technically might have been authorised by the Chief Commissioner of income-tax by approving the proposal for their continued retention up to 31-12-2007 is not forthcoming in the statement of objections filed on behalf of the respondents. ( 12 ) THE entire action of conducting the survey is in the context of the power vested under Sec. 133-A. The object of conducting the survey is to gather information. The provisions of Sec. 133-A, as it stood earlier, did not contain any power of impounding of documents during me course of search of a premises. The power for impounding documents is a later addition by Amending Act 20/2002 with effect from 1-6-2002, to which my specific attention has been drawn by Sri. Aravind, learned counsel for the respondents. The provision reads as under :- "sec. 133 (A ). Power of survey.- (1)Notwithstanding anything contained in any other provision of this Act, an income-tax authority may enter - (a) any place within the limits of the area assigned to him or (b) any place occupied by any person in respect of whom he exercises jurisdiction (or) (c) any place in respect of which he is authorised for the purposes of this section by such income-tax authority, who is assigned the area within which such place is situated or who exercises jurisdiction in respect of any person occupying such place. at which a business or profession is carried on, whether such place be the principal place or not of such business or profession, and require any proprietor, employee or any other person who may at that time and place by attending in any manner to, or helping in, the carrying on of such business or profession- (1) to afford him the necessary facility to inspect such books of account or other documents as he may require and which may be available at such place, (ii) to afford him the necessary facility to check or verify the cash, stock or other valuable article or thing which may be found therein, and (iii) to furnish such information as he may require as to any matter which may be useful for, or relevant to, any proceedings under this Act. Explanation.- For the purposes of this sub-section, a place where a business or profession is carried on shall also include any other place, whether any business or profession is carried on therein or not, in which the person carrying on the business or profession states that any of his books of account or other documents or any part of his cash or stock of other valuable article or thing relating to his business or profession are or is kept. (2) An income tax authority may enter any place of business or profession referred to in sub-section (1) only during the hours at which such place is open for the conduct of business of profession and, in the case of any other place, only after sunrise and before sunset. (2) An income tax authority may enter any place of business or profession referred to in sub-section (1) only during the hours at which such place is open for the conduct of business of profession and, in the case of any other place, only after sunrise and before sunset. (3) An income-tax authority acting under this section may,- (i) if he so deems necessary, place marks of identification on the books of account or other documents inspected by him and make or cause to be made extracts or copies there from, (i-a) impound and retain in his custody for such period as he thinks fit any books of account or other documents inspected by him : provided that such income tax authority shall not - (a) impound any books of account or other documents except after recording his reasons for so doing; or (b) retain in his custody any such books of account or other documents for a period exceeding ten days (exclusive of holidays) without obtaining the approval of the Chief Commissioner or Director General therefor, as the case may be, (ii) make an inventory of any cash, stock or other valuable article or thing checked or verified by him, (iii) record the statement of any person which may be useful for, or relevant to, any proceeding under this Act. The impounding can be initially for a duration of 10 days i. e. retention of the impounded documents and thereafter, unless it had been properly authorised for continued retention, it should be returned. The intention is not to trespass into the privacy of the citizen and trample upon their private rights unless warranted. The other provisions also indicate that the Officer exercising the power of survey should not remove from the place of survey any cash, stock or other valuable or other things. In the present case, it is a fact that the respondents have removed certain valuable articles, although, it is now submitted that they have been returned to the petitioner which were in the form of lap-taps, computers etc. Be that as it may, it is a fact that impounded documents are lying with the respondents for over about six months. Though, it is described that voluminous documents had been impounded and it requires time to process it, the list appended to the impugned order indicates that they are innumerable. Be that as it may, it is a fact that impounded documents are lying with the respondents for over about six months. Though, it is described that voluminous documents had been impounded and it requires time to process it, the list appended to the impugned order indicates that they are innumerable. It is not for the Income-tax Department to plead before this Court that for processing the few impounded documents they require more than six months. The documents i are with the respondents. The names, which i figure therein could have been recorded in their books and necessary action may be pursued. I do not find any justification for the respondents to plead that there was non-cooperation on the part of the petitioner for investigation etc. When the respondents had impounded all the documents, there was nothing that could be done by the petitioner. The bogey of non co-operation, and pleading that as the justification for continued retention falls flat on its face and cannot be accepted. ( 13 ) IT is no doubt true that the Act empowers the Income-tax authorities to exercise their power for the purpose of Act and such powers are wide, drastic in nature and causing invasion into the individual rights and the privacy of the individuals. But, even while such provisions have been upheld by the Courts, the action would still become illegal if it is shown by the person affected that such action was resorted to not to advance the object of the Act but only on account of mala fides. If the person affected succeeds in proving that the power as exercised is not commensurate to the requirement of the situation, the action itself though permitted in law nevertheless becomes bad as arbitrary exercise of power or mala fide exercise of power. In the present case, the exercise of power by the authorities under the Act is not only arbitrary but even goes beyond that and is more akin to mala fide exercise of power. The submission of Sri. Aravind, learned counsel for the respondents that the petitioner though had agreed before the 2nd respondent-Joint Commissioner of income-tax that he will file the return of income offering income of Rs. 10 lakhs to be taxed; that he has not complied so far is rather relevant. The submission of Sri. Aravind, learned counsel for the respondents that the petitioner though had agreed before the 2nd respondent-Joint Commissioner of income-tax that he will file the return of income offering income of Rs. 10 lakhs to be taxed; that he has not complied so far is rather relevant. If at all, the authorities are expecting or hoping that the retention of the document would pressurize the petitioner to abide by what he has agreed, it means that they are using powers under the Act to coerce the petitioner to submission rather than for any bona fide purpose. It is not for the authorities to embark upon such adventures, rather misadventures, though the intention may still be for gathering revenue to the State. If it is a fact that the petitioner should have offered income of Rs. 10 lakhs and if he had not offered it to tax, there is sufficient power under the Act enabling the income-tax authorities to take such necessary action as the situation warrants and that cannot be achieved by coercive method of retention of such impounded documents. No doubt, the investigation is for the purpose of gathering information. The information having been already gathered, it is open to the respondent to follow it up with such action as is permitted under law pursuant to such information, but not to sit tight on the document seized to the detriment of the petitioner. Though it is urged that the documents belong to the third parties and not to the petitioner-partnership firm or the partner paniraj and therefore they cannot plead any hardship or disadvantage caused to them by the continued retention of the documents, this argument cannot be accepted for the reason that all the documents which have been impounded are from the possession of the petitioner. As submitted by the learned counsel for the petitioner, the petitioner is answerable to his clients, who perhaps have parted with these documents in favour of the petitioner for various business transactions, reposing trust in them. Whether the said business transactions are illegal or are permitted in law are all matters to be separately taken care of and proceeded with. But on mere speculation and on mere possibilities, it is not open to the respondents to exercise their powers for survey for the continued retention just because the statutory provisions enables such retention. Whether the said business transactions are illegal or are permitted in law are all matters to be separately taken care of and proceeded with. But on mere speculation and on mere possibilities, it is not open to the respondents to exercise their powers for survey for the continued retention just because the statutory provisions enables such retention. When the provisions of the Act is indicative of the intention of the legislature that the least amount of authority should be exercised, it passes one's comprehension as to why the impounded documents are required to be retained for well over a period of 18 months. An omnibus permission of this nature for retaining the documents for 18 months without indicating any rhyme or reason or justification is something per se bad. Such permission, it appears has been granted by the Commissioner as part of a wholesale permission in respect of five such acts by simply nodding his head without examining as to the need of justification. A permission of this nature while per se is bad in law, the defence put up is also not a bona fide one. It is a well settled principle of law that while such powers when exercised even as permitted in law, it should be least obtrusive and just commensurate to the requirement of the given situation. Doctrine of proportionality calls for justifying every action by applying these tests and if it is found that the exercise of power is more than warranted or justified in the sense it results in the imposition of excessive restriction, the action does not withstand scrutiny of judicial review and has to be declared as bad. Though the courts exercise only the jurisdiction of judicial review of administrative action, the depth of judicial review is proportionate to the gravity of the situation. Greater the affectation of a right by a questioned administrative act, deeper will be the scrutiny. ( 14 ) THE blind permission of this nature authorising the impounded documents to be retained for a period of 18 months is definitely an excessive inroad into the privacy and individual rights and when no justification or bona fides are forthcoming to defend it, the action can never be permitted in law as the exercise of power under the Act can only be for bona fide purpose and not for whimsical or arbitrary action. ( 15 ) THE defence put up by the respondents even in terms of the statement of objections being not tenable in law and also indicating lack of bona fides, it is necessary that the respondents should be mulcted with costs quantified at a sum of Rs. 5,000/ -. Consequently, the respondents are directed to return the documents, which they had impounded pursuant to the act of impounding as on 22-6-2006. However, it is open for the respondents to take such other action as is permitted in law in accordance with the law and the provisions of the Act. It is also open to the respondents to retain the copies of the impounded documents which the petitioner shall authenticate at the time of taking back of the originals as true copies and such action to be taken within two weeks from the date of receipt of a copy of this order. The petitioner shall co-operate in future investigation in the context of assessment of such persons whose income is found to have been suppressed pursuant to the information that has already been gathered and the follow up action, if any. ( 16 ) IN the result, the authorisation under annexure-R1 to the statement of objections and the continued retention of the documents pursuant to the impounding order at Annexure-C to the writ petition and all other actions thereafter deserves to be quashed and are accordingly quashed. Rule issued and made absolute. Writ petition is allowed. Petition allowed.