The ACIT, 1 (1), v. M/s Parakh Dwellings,

ITSSA 96/IND/2008 | 2003-2004
Pronouncement Date: 25-01-2010 | Result: Dismissed

Appeal Details

RSA Number 9622716 RSA 2008
Assessee PAN AAFFP4823R
Bench Indore
Appeal Number ITSSA 96/IND/2008
Duration Of Justice 1 year(s) 7 month(s) 26 day(s)
Appellant The ACIT, 1 (1),
Respondent M/s Parakh Dwellings,
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 25-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 25-01-2010
Date Of Final Hearing 21-12-2009
Next Hearing Date 21-12-2009
Assessment Year 2003-2004
Appeal Filed On 30-05-2008
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH AND SHRI V.K. GUPTA AM IT(SS)A NOS. 95 TO 98/IND/08 A.YS. 2002-03 TO 2005-06 ASSTT. COMMR. OF INCOMETAX 1(1) BHOPAL APPELLANT VS M/S PARAKH DWELLINGS S/14 THADDARAM COMPLEX ZONE-II M.P. NAGAR BHOPAL (M.P.) PAN AAFFP 4823R RESPONDENT IT(SS)A NOS.104 TO 108/IND/08 A.YS. 2001-02 TO 2005-06 ASSTT. COMMR. OF INCOMETAX 1(1) BHOPAL APPELLANT VS M/S PARAKH BUILDERS S/14 THADDARAM COMPLEX ZONE-II M.P. NAGAR BHOPAL (M.P.) PAN AAEFP-6772-G DEPARTMENT BY SHRI K.K. SINGH CIT DR ASSESSEE BY S/SHRI H.P. VERMA AND SHRI ASHISH GOYAL 2 O R D E R PER JOGINDER SINGH JM THESE ARE THE APPEALS OF THE REVENUE AGAINST THE O RDERS DATED 5.3.2008 PASSED BY THE LEARNED CIT(A) BHOPAL. IN IT(SS)A. NOS. 95 TO 98/I ND/2008 THE FOLLOWING COMMON GROUNDS HAVE BEEN RAISED :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN 1. TREATING THE ASSESSMENT ORDER DATED 29.12.2006 AS N ULL AND VOID FOR THE ASSESSMENT YEARS 02-03 TO 05-06 BY HOLDING THAT THE ASSESSMENT WAS WRONGLY COMPLETED U/S 153A READ WITH SECTION 15 3C/143(3) OF THE I.T. ACT PARTICULARLY WHEN THE ASSESSMENT PROC EEDINGS WERE INITIATED IN CONSEQUENCE TO THE INCRIMINATING DOCUM ENTS FOUND DURING SEARCH CONDUCTED IN THE CASE OF SHRI O.P. KR IPLANI ONE OF THE TWO PARTNERS OF THE ASSESSEE FIRM. 2. TREATING THE ASSESSMENT ORDER DATED 29.12.2006 AS N ULL AND VOID FOR THE ASSESSMENT YEARS 02-03 TO 05-06 BY HOLDING THAT THE ASSESSMENT WAS WRONGLY COMPLETED UNDER SECTION 153A READ WITH SECTION 153C/143(3) OF THE I.T. ACT IGNORING THE FACT THAT ASSESSMENT PROCEEDINGS WERE COMPLETED U/S 153C AND NOT U/S 153 A AS HELD BY THE CIT(A) IN THE APPELLATE ORDER. 3. DELETING THE ADDITION OF RS.3 93 615/- RS. 12 92 8 68/- RS. 17 31 000/- AND RS.11 81 016/- MADE ON ACCOUNT OF U NDISCLOSED PROFIT ON PROTECTIVE BASIS FOR ASSESSMENT YEARS 200 2-03 2003-04 2004-05 AND 2005-06 RESPECTIVELY BY HOLDING THAT TH E AO FAILED TO SUBSTANTIATE THE BASIS FOR APPLYING PROFIT RATE OF 25% ON CONTRACT RECEIPT. HOWEVER THE CIT(A) FAILED TON APPRECIATE THE FACT THAT THE AO HAD CLEARLY ESTABLISHED THAT M/S ASNANI BUILDERS AND DEVELOPERS LTD. HAD CREATED THE ASSESSEE FIRM AS A FRONT WHERE BY THE RECEIPTS WERE SUPPRESSED AND BY APPLYING THE PROVISIONS OF S ECTION 44AD REDUCED PROFIT WERE SHOWN IN THE HANDS OF M/S ASNAN I BUILDERS AND DEVELOPERS PVT. LTD. 4. DELETING THE ADDITION OF RS.3 93 615/- RS. 12 92 8 68/- RS.17 31 000/- AND RS. 11 81 016/- MADE ON ACCOUNT OF UNDISCLOSED PROFIT ON PROTECTIVE BASIS FOR ASSESSMENT YEARS 200 2-03 2003-04 2004-05 AND 2005-06 RESPECTIVELY WHEREBY THE CIT(A) HAS FAILED TO TAKE COGNIZANCE OF THE STATEMENT OF THE PARTNER OF THE ASSESSEE FIRM IN WHICH HE CONFESSED THAT THE FIRM DO NOT HAVE ANY OTHER WORK APART FROM THE WORK OF M/S ASNANI BUILDERS 3 IN ITA NOS. 104 TO 108/IND/08 THE FOL LOWING COMMON GROUNDS HAVE BEEN RAISED :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN 1. TREATING THE ASSESSMENT ORDER DATED 29.12.2006 AS N ULL AND VOID FOR THE ASSESSMENT YEARS 02-03 TO 05-06 BY HOLDING THAT THE ASSESSMENT WAS WRONGLY COMPLETED U/S 153A READ WITH SECTION 15 3C/143(3) OF THE I.T. ACT PARTICULARLY WHEN THE ASSESSMENT PROC EEDINGS WERE INITIATED IN CONSEQUENCE TO THE INCRIMINATING DOCUM ENTS FOUND DURING SEARCH CONDUCTED IN THE CASE OF SHRI O.P. KR IPLANI ONE OF THE TWO PARTNERS OF THE ASSESSEE FIRM. 2. TREATING THE ASSESSMENT ORDER DATED 29.12.2006 AS N ULL AND VOID FOR THE ASSESSMENT YEARS 02-03 TO 05-06 BY HOLDING THAT THE ASSESSMENT WAS WRONGLY COMPLETED UNDER SECTION 153A READ WITH SECTION 153C/143(3) OF THE I.T. ACT IGNORING THE FACT THAT ASSESSMENT PROCEEDINGS WERE COMPLETED U/S 153C AND NOT U/S 153 A AS HELD BY THE CIT(A) IN THE APPELLATE ORDER. 3. DELETING THE ADDITION OF RS.6 00 000/- RS. 7 24 50 5/- RS. 2 20 000/- RS.3 34 096/- AND RS. 91 750/- MADE ON ACCOUNT OF UNDISCLOSED PROFIT ON PROTECTIVE BASIS FOR ASSESSMENT YEARS 200 2-03 2003-04 2004-05 AND 2005-06 RESPECTIVELY BY HOLDING THAT TH E AO FAILED TO SUBSTANTIATE THE BASIS FOR APPLYING PROFIT RATE OF 25% ON CONTRACT RECEIPT. HOWEVER THE CIT(A) FAILED TON APPRECIATE THE FACT THAT THE AO HAD CLEARLY ESTABLISHED THAT M/S ASNANI BUILDERS AND DEVELOPERS LTD. HAD CREATED THE ASSESSEE FIRM AS A FRONT WHERE BY THE RECEIPTS WERE SUPPRESSED AND BY APPLYING THE PROVISIONS OF S ECTION 44AD REDUCED PROFIT WERE SHOWN IN THE HANDS OF M/S ASNAN I BUILDERS AND DEVELOPERS PVT. LTD. 4. DELETING THE ADDITION OF RS.6 00 000/- RS. 7 24 50 5/- RS. 2 20 000/- RS.3 34 096/- AND RS. 91 750/- MADE ON ACCOUNT OF UNDISCLOSED PROFIT ON PROTECTIVE BASIS FOR ASSESSMENT YEARS 200 2-03 2003-04 2004-05 AND 2005-06 RESPECTIVELY WHEREBY THE CIT(A) HAS FAILED TO TAKE COGNIZANCE OF THE STATEMENT OF THE PARTNER OF THE ASSESSEE FIRM IN WHICH HE CONFESSED THAT THE FIRM DO NOT HAVE ANY OTHER WORK APART FROM THE WORK OF M/S ASNANI BUILDERS 2. DURING HEARING OF THESE APPEALS WE HAVE HEARD SH RI K.K. SINGH LEARNED CIT DR AND SHRI H.P. VERMA ALONG WITH SHRI ASHISH GOYAL LEAR NED COUNSEL FOR THE ASSESSEE. THE LEARNED REPRESENTATIVES OF BOTH THE SIDES CONTENDED THAT SINCE THE ISSUES INVOLVED ARE IDENTICAL THEREFORE THESE CAN BE HEARD TOGETHER. IT WAS PO INTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE 4 THAT THE ISSUES ARE COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ACIT V. M/S ASNANI BUILDERS & DEVELOPERS LIMITED (IT(SS) A NOS. 166 TO 172/IND/07) ORDER DATED 31.1.2008. THIS ASSERTION OF THE ASSESSEE WAS CONSENTED TO BE CORRECT BY THE LEARNED CIT DR. IT WAS PLEADED THAT THE FACTS ARE EXACTLY IDENTICAL. DURI NG HEARING THE LEARNED REPRESENTATIVES OF BOTH THE SIDES INVITED OUR ATTENTION TO CERTAIN PAR AS OF THE AFORESAID ORDER OF THE TRIBUNAL DATED 31.1.2008. A PLEA WAS ALSO RAISED THAT THERE WAS NO SEARCH IN THE PRESENT APPEALS AS THE SEARCH WAS CONDUCTED AT THE PREMISES OF SHRI O. P. KRIPLANI WHERE NOTHING WAS RECOVERED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PUT FOR TH BY THE LEARNED RESPECTIVE COUNSELS AND CONSIDERED THEIR SUBMISSIONS. THE FIRST GROUN D RAISED IS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED FIRST APPELL ATE AUTHORITY ERRED IN TREATING THE ASSESSMENT ORDER AS NULL AND VOID BY HOLDING THAT THE ASSESSME NT WAS WRONGLY COMPLETED U/S 153A READ WITH SECTION 153C/143(3) ESPECIALLY WHEN THE ASSESS MENT PROCEEDINGS WERE INITIATED IN CONSEQUENCE WITH THE INCRIMINATING DOCUMENTS FOUND IN THE CASE OF SHRI O.P. KRIPLANI ONE OF THE TWO PARTNERS OF THE ASSESSEE FIRM IGNORING THE FACT THAT THE ASSESSMENT PROCEEDINGS WERE COMPLETED U/S 153C AND NOT U/S 153A OF THE ACT . 4. WE HAVE FOUND THAT IDENTICAL FACTS WERE CONSIDER ED AND DECIDED BY THE TRIBUNAL IN THE AFORESAID ORDER DATED 31.1.2008. THE RELEVANT PORT ION OF THE ORDER AS CONTAINED IN PARA 6 ONWARDS IS REPRODUCED HEREUNDER :- 6. THE ASSESSEE HAS CHALLENGED THE VALIDITY OF THE ASSESSMENT ORDER ON THE GROUND THAT NEITHER ANY ACTION UNDER SECTION 132 OF THE ACT NOR ANY REQUIREMENTS OF SECTION 132 OF THE ACT WERE SATISFI ED AND ALSO IN THE ABSENCE OF ANY PANCHNAMA AND AUTHORIZATION REQUIRED UNDER SECTION 132OF THE ACT AND THEREFORE NO PROCEEDINGS COULD HAVE BEEN INITIATED. IT WAS EXPLAINED THAT THE ASSESSING OFFICER HAS MENTIO NED IN THE ASSESSMENT ORDER THAT IN THIS CASE SEARCH AND SEIZURE ACTION U NDER SECTION 132(1) OF THE ACT WAS CARRIED OUT ON 2/3 RD NOVEMBER 2004 IN THE MAIN DIRECTOR OF THE COMPANY I.E. SHRI V. ASNANI AT E-5/45 ARERA CO LONY BHOPAL. THE ASSESSING OFFICER HAS FURTHER MENTIONED THAT IN THE COURSE OF SEARCH ACTION THE SURVEY PROCEEDINGS ALSO TOOK PLACE ON 2 .11.2004 AT THE OFFICE PREMISES OF THE ASSESSEE COMPANY AT 209A THADARAM COMPLEX BHOPAL. THEREAFTER THE ASSESSING OFFICER HAS MENTIONED THA T IN THE CASE OF THE ASSESSEE COMPANY NOTICES UNDER SECTION 153A OF THE ACT HAVE BEEN ISSUED 5 FOR ALL THE ASSESSMENT YEARS IN QUESTION ON 29 TH DECEMBER 2005. THE ASSESSEE EXPLAINED THAT THE RETURNS ALREADY FILED B Y THE ASSESSEE IN TERMS OF SECTION 139 MAY BE TREATED AS IN COMPLIANCE WITH THE NOTICE UNDER SECTION 153A OF THE ACT. IT WAS FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS NOT CONSIDERED THE REPLY FILED BY THE A SSESSEE BECAUSE IN THE SAID APPLICATION ALSO IT WAS MENTIONED TO THE ASSES SING OFFICER TO SUPPLY REASONS RECORDED FOR ISSUE OF NOTICES UNDER SECTION 153A OF THE ACT. THE ASSESSING OFFICER HAS HOWEVER NOT SUPPLIED THE REAS ONS. IT WAS FURTHER SUBMITTED THAT IT IS NOWHERE PROVIDED IN THE ASSESS MENT ORDER IF THE ASSESSING OFFICER CONSIDERED OBJECTIONS OF THE ASSE SSEE. IT WAS SUBMITTED THAT V. ASNANI IS THE DIRECTOR OF THE ASSESSEE COMP ANY AND SEARCH OPERATION WAS CARRIED OUT IN HIS RESIDENCE AND SURV EY PROCEEDINGS WERE CARRIED OUT AT THE PREMISES OF THE ASSESSEE COMPANY AT THADARAM COMPLEX BHOPAL. THEREFORE THE ASSESSING OFFICER COULD NOT HAVE PROCEEDED UNDER SECTION 153A OF THE ACT AND AS SUCH CONSEQUENTIAL PROCEEDINGS BASED UPON SUCH NOTICES ARE UNTENABLE I N LAW. IT WAS FURTHER SUBMITTED THAT SINCE NO SEARCH OPERATION IS CONDUCT ED IN THE CASE OF THE ASSESSEE COMPANY UNDER SECTION 132 OF THE ACT THE REFORE THE ASSESSMENT ORDERS PASSED UNDER SECTION 153A ARE BAD IN LAW. TH E ASSESSEE RELIED UPON THE PROVISIONS OF SECTIONS 153A AND 153C OF TH E ACT. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE DOCUMENTS F ILED BEFORE HIM WAS OF THE VIEW THAT THE ASSESSING OFFICER HAS NOT MENTION ED IN THE ORDER AS TO HOW THE ASSESSEES CASE HAS BEEN TREATED BEING SEAR CH CASE AND ISSUED A NOTICE UNDER SECTION 153A OF THE ACT. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ALSO OBSERVED THAT THE ASSESSI NG OFFICER HAS ALSO NOT MENTIONED IN THE ASSESSMENT ORDER ABOUT HIS SATISFA CTION FOR ARRIVING AT HIS CONCLUSION FOR ISSUING A NOTICE UNDER SECTION 1 53A OF THE ACT. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONSID ERING THE PROVISIONS OF SECTION 153A OF THE ACT WAS OF THE VIEW THAT THE ASSESSEES CASE HAS BEEN WRONGLY COMPLETED UNDER SECTION 153A OF THE AC T AND ACCORDINGLY ORDER IS TREATED AS NULL AND VOID AND ACCORDINGLY QUASHED THE ASSESSMENT ORDERS. 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTE D THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DID NO T CONSIDER THE FACTS OF THE PROPERLY BECAUSE IN THIS CASE WARRANT OF AUT HORIZATION UNDER SECTION 132 OF THE ACT WAS JOINTLY ISSUED IN THE NAMES OF S MT. JAYA KRIPLANI AND M/S ASNANI BUILDERS & DEVELOPERS LIMITED I.E. THE A SSESSEE COMPANY. A COPY OF THE WARRANT OF AUTHORIZATION DATED 27 TH OCTOBER 2004 IS FILED. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT VERIFY ING THE FACTS PROPERLY QUASHED THE ASSESSMENT ORDERS DESPITE WARRANT OF AU THORISATION UNDER SECTION 132 TO SEARCH THE PREMISES OF THE ASSESSEE WAS ISSUED. THE LEARNED DEPARTMENTAL REPRESENTATIVE REFERRED TO THE REPORT OF THE ADDITIONAL DIRECTOR OF INCOMETAX INVESTIGATION B HOPAL DATED 24.1.2008 AND OF THE ASSISTANT DIRECTOR OF INVESTIGATION-I B HOPAL DATED 18.1.2008. THE LEARNED DEPARTMENTAL REPRESENTATIVE REFERRED TO THE ABOVE LETTERS OF THE ADI (INVESTIGATION) BHOPAL SUBMITTED THAT NO SEARCH WAS EXECUTED OR CONDUCTED AT THE PREMISES OF THE ASSESSEE IN PURSUA NCE WITH WARRANT OF AUTHORIZATION DATED 27 TH OCTOBER 2004. THE LEARNED DEPARTMENTAL 6 REPRESENTATIVE SUBMITTED THAT ONLY SURVEY WAS CONDU CTED AT THE PREMISES OF THE ASSESSEE COMPANY. THE LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT IN PURSUANCE WITH THE WARRAN T OF AUTHORIZATION NO PANCHNAMA IS DRAWN IN THE NAME OF THE ASSESSEE COMP ANY BECAUSE NO SEARCH WAS CONDUCTED IN THE PREMISES OF THE ASSESSE E. THE LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT SEARCH WAS CONDUCTED AT E-5/45 ARERA COLONY BHOPAL I.E. THE RESIDENCE OF V. ASNANI WHO IS A DIRECTOR OF THE ASSESSEE COMPANY AND HE IN HIS STAT EMENT RECORDED ON 3.11.2004 SUBMITTED THAT THE HOUSE IS THE ASSET OF THE COMPANY AND THEREFORE SUBMITTED THAT THE SAME IS ALSO COVERED UNDER SECTION 132 OF THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE WHILE REFERRING TO LETTER DATED 24.1.2008 OF THE ADIT (INV.) BHOPAL SUBMITT ED THAT THE WARRANTS OF AUTHORISATION IN THE NAMES OF JAYA KRIPLANI AND M/S ASNANI BUILDERS & DEVELOPERS LIMITED I.E. THE ASSESSEE COMPANY WERE NOT EXECUTED. THE LEARNED DEPARTMENTAL REPRESENTATIVE THEREFORE EX PLAINED THAT SINCE ONE OF THE DIRECTORS WHO REPRESENTED THE ASSESSEE COMPA NY WAS SEARCHED IS SUFFICIENT TO HOLD THAT PREMISES OF THE ASSESSEE CO MPANY IS ALSO SEARCHED UNDER SECTION 132 OF THE ACT THEREFORE QUASHING THE ASSESSMENT ORDERS IS NOT JUSTIFIED IN THE MATTER. THE LEARNED DEPARTMEN TAL REPRESENTATIVE SUBMITTED THAT INITIATION OF SEARCH UNDER SECTION 1 32 OF THE ACT COMMENCES WITH THE ISSUE OF AUTHORIZATION THEREFORE THERE WAS A VALID INITIATION OF SEARCH UNDER SECTION 132 OF THE ACT AS REQUIRED UND ER SECTION 153A OF THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE IN SU PPORT OF HIS CONTENTION RELIED UPON THE DECISION OF THE BANGALOR E BENCH OF ITAT IN THE CASE OF VIPRO FINANCE LIMITED; 80 TTJ 571 AND SUBMI TTED THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIF IED IN QUASHING THE REASSESSMENT ORDERS. THE LEARNED DEPARTMENTAL REPR ESENTATIVE FURTHER SUBMITTED THAT DROPPING OF THE PROCEEDINGS WOULD AL SO AMOUNT TO PASSING OF THE ORDER SUBJECTED TO REVISION PROCEEDINGS UNDE R SECTION 263 OF THE ACT. IN SUPPORT OF THE CONTENTION THE LEARNED DEPAR TMENTAL REPRESENTATIVE RELIED UPON THE DECISION OF THE HONBLE GUJARAT HIG H COURT IN THE CASE OF NEW JAGAT TEXTILE MILLS (P) LIMITED V. CIT; 196 CTR 110 AND THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CI T V. ANDHRA CIVIL CONSTRUCTION LIMITED; 140 TAXMAN 308. THE LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT THIS ISSUE IS IDENTICAL AS HAS BEEN ARGUED BY HIM AT LENGTH IN THE CASE OF ACIT V. RISH I CONSTRUCTION BHOPAL IN IT(SS) A. NOS. 154 TO 158/IND/07 AND HIS REMAINI NG ARGUMENTS ARE THE SAME. 9. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW A ND SUBMITTED THAT NO BOOKS OF ACCOUNTS OR DOCUMENTS PERTAINING TO THE AS SESSEE COMPANY WERE SEIZED OR IMPOUNDED IN SEARCH OPERATION UNDER SECTI ON 132 OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT CER TAIN DOCUMENTS WERE IMPOUNDED IN SURVEY WHICH HAVE NO CONNECTION WITH T HE ASSESSEE COMPANY. THE LEARNED COUNSEL FOR THE ASSESSEE FURTH ER SUBMITTED THAT SINCE NO SURVEY OPERATION WAS CONDUCTED IN THE PREM ISES OF THE ASSESSEE THE CONDITIONS OF SECTION 132 OF THE ACT ARE NOT SA TISFIED AND AS SUCH INITIATION OF PROCEEDINGS UNDER SECTION 153A OF THE ACT ARE BAD IN LAW AND WAS RIGHTLY QUASHED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THE LEARNED COUNSEL FOR THE ASSESSEE FU RTHER SUBMITTED THAT THE 7 OFFICE ADDRESS OF THE ASSESSEE COMPANY IS 209A THA DARAM COMPLEX AND NO SEARCH IS CONDUCTED IN THE PREMISES OF THE ASSES SEE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THOUGH THE LEARNED DEPARTMENTAL REPRESENTATIVE PRODUCED THE SEARCH WARRANT DATED 27 TH OCTOBER 2004 DURING THE COURSE OF ARGUMENTS BEFORE THE TRIBUNAL BUT THE SAID WARRANT OF AUTHORISATION WAS NEVER EXECUTED AGAINST THE ASSESS EE COMPANY AND THE PLACE TO BE SEARCHED IN SUCH WARRANT OF AUTHORISATI ON IS MENTIONED AS 71/73 LILLIN APARTMENT DR. AMBEDKAR ROAD KHAR (W EST) MUMBAI WHICH IS THE OFFICE ADDRESS OF THE ASSESSEE AND THE RE TOO ALSO NO SEARCH WARRANT WAS EXECUTED AND NO SEARCH IS CONDUCTED AT ANY POINT OF TIME. THE LEARNED COUNSEL FOR THE ASSESSEE THEREFORE S UBMITTED THAT THERE IS NO INFIRMITY IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN QUASHING THE ASSESSMENT ORDERS. THE L EARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE ISSUE IS IDENTICAL AS IS ARGUED IN THE CASE OF M/S RISHI CONSTRUCTION (SUPRA) AND SUBMITTED THA T THE VIEW TAKEN IN THAT CASE MAY BE FOLLOWED. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND TH E MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS ARE THAT WARRANT OF AUTHORISATION DATED 24 TH OCTOBER 2004 WAS ISSUED JOINTLY IN THE NAMES OF SMT. JAYA KRIPLANI AND M/S ASNANI BUILDERS & DEVEL OPERS LIMITED I.E. THE ASSESSEE AND THE AUTHORIZED OFFICER WAS DIRECTE D TO SEARCH THE PREMISES AT 71/73 LILLIN APARTMENT DR. AMBEDAKAR ROAD KHAR (WEST) MUMBAI. IT IS ALSO AN ADMITTED FACT THAT THE SAID WARRANT OF AUTHORISATION WAS NOT EXECUTED AT ANY POINT OF TIME IN RESPECT OF THE ASSESSEE COMPANY AT THE ADDRESS GIVEN IN THE WARRANT OF AUTHORIZATIO N. THIS FACT IS ALSO CONFIRMED BY THE ADIT (INV.) BHOPAL IN HIS LETTER DATED 24.1.2008 A COPY OF WHICH IS FILED BY THE LEARNED DEPARTMENTAL REPRE SENTATIVE BEFORE US. IT WAS EXPLAINED BEFORE US THAT AS PER VERSION OF THE ASSESSING OFFICER SHRI V. ASNANI DIRECTOR OF THE ASSESSEE COMPANY WAS SE ARCHED AT E-5/45 ARERA COLONY BHOPAL. THE SAID SEARCH AT THE RESID ENCE OF V. ASNANI IS THEREFORE NOT IN CONSONANCE WITH THE WARRANT OF AU THORISATION ISSUED IN THE NAME OF THE ASSESSEE COMPANY DATED 27 TH OCTOBER 2004. NOTHING IS CLARIFIED BEFORE US AS TO HOW AND UNDER WHAT CIRCUM STANCES V. ASNANI WAS SEARCHED. NO WARRANT OF AUTHORISATION IS PRODUCED BEFORE US IN THE NAME OF V. ASNANI AS TO HOW HE WAS SEARCHED. IT THERE FORE STANDS ESTABLISHED THAT THOUGH THE WARRANT OF AUTHORISATION DATED 27 TH OCTOBER 2004 WAS ISSUED IN THE NAME OF THE ASSESSEE COMPANY FOR SEAR CH OF ITS REGISTERED OFFICE AT MUMBAI BUT THE SAID WARRANT OF AUTHORISAT ION WAS NEVER EXECUTED BECAUSE SEARCH WAS NOT CONDUCTED IN THE PREMISES OF THE ASSESSEE COMPANY. IT IS VERY WELL SETTLED THAT THE COMPANY IS A SEPARATE LEGAL ENTITY AND CANNOT BE EQUATED WITH ANY DIRECTOR OR ANY OTHE R PERSON. THE ISSUE OF LEGALITY OF THE ASSESSMENT ORDERS IN THE CASES OF W HICH WARRANT OF AUTHORISATION IS NOT EXECUTED AND WHERE NO SEARCH I S CONDUCTED IN PURSUANCE WITH THE WARRANT OF AUTHORIZATION WAS AR GUED AT LENGTH BY THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES IN THE CASE OF ACIT V. RISHI CONSTRUCTION BHOPAL AND SIMILAR SUBMISSIONS HAVE BEEN MADE BY BOTH THE PARTIES ON THE IDENTICAL FACTS. VIDE SEPARATE ORDER OF EVEN DATE WE HAVE DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE AND CONFIRMED THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN QUASHING THE ASSESSMENT ORDERS UNDER SECTION 153A OF THE ACT IN THE CASE OF M/S RISHI 8 CONSTRUCTION (SUPRA) AND THE DEPARTMENTAL APPEALS H AVE BEEN DISMISSED. OUR FINDINGS IN THE CASE OF M/S RISHI CONSTRUCTIONS (SUPRA) IN PARAS 10 TO 13 ARE REPRODUCED AS UNDER :- 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND T HE MATERIAL AVAILABLE ON RECORD. SECTION 153A OF THE ACT PROVID ES - 153A . NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139 SECTION 147 SECTION 148 SECTION 149 SECTION 151 AND SECTION 153 IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UND ER SECTION 132A AFTER THE 31ST DAY OF MAY 2003 THE ASSESSING OFFICER SH ALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FU RNISH WITHIN SUCH PERIOD AS MAY BE SPECIFIED IN THE NOTICE THE RETU RN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B) IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL SO FAR AS MAY BE APP LY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 ; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSE SSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN SUCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT IF ANY RELATING T O ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS REFERRED TO IN THIS SECTION PENDING ON THE DATE OF INITIATIO N OF THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A AS THE CASE MAY BE SHALL ABATE. EXPLANATION.FOR THE REMOVAL OF DOUBTS IT IS HEREB Y DECLARED THAT (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION SECTION 153B AND SECTION 153C ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO T HE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESPE CT OF AN ASSESSMENT YEAR UNDER THIS SECTION THE TAX SHALL BE CHARGEABL E AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. SECTION 132 OF THE ACT PROVIDES - 132. (1) WHERE THE DIRECTOR GENERAL OR DIRECTOR] OR THE [CHIEF COMMISSIONER OR COMMISSIONER] [OR ANY SUCH [JOINT D IRECTOR] OR [JOINT COMMISSIONER] AS MAY BE EMPOWERED IN THIS BEHALF BY THE BOARD] IN CONSEQUENCE OF INFORMATION IN HIS POSSESSION HAS R EASON TO BELIEVE THAT 9 (A) ANY PERSON TO WHOM A SUMMONS UNDER SUB-SECTION (1) O F SECTION 37 OF THE INDIAN INCOME TAX ACT 1922 (11 OF 1922) OR UNDER SUB-SEC TION (1) OF SECTION 131 OF THIS ACT OR A NOTICE UNDER SUB-SECTION (4) OF SECTION 22 OF THE INDIAN INCOME TAX ACT 1922 OR UNDER SUBSECTION (1) OF SECTION 142 OF THIS ACT WAS ISSUED TO PRODUCE OR CAUSE TO BE PRODUCED ANY BOOKS OF ACCOUNT OR O THER DOCUMENTS HAS OMITTED OR FAILED TO PRODUCE OR CAUSE TO BE PRODUCED SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS AS REQUIRED BY SUCH SUMMONS OR NOTICE OR (B) ANY PERSON TO WHOM A SUMMONS OR NOTICE AS AFORESAID HAS BEEN OR MIGHT BE ISSUED WILL NOT OR WOULD NOT PRODUCE OR CAUSE TO B E PRODUCED ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS WHICH WILL BE USEFUL FO R OR RELEVANT TO ANY PROCEEDING UNDER THE INDIAN INCOMETAX ACT 1922 (1 1 OF 1922) OR UNDER THIS ACT OR (C) ANY PERSON IS IN POSSESSION OF ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING 69 AND SUCH MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING REPRESENTS EITHER WHOLLY O R PARTLY INCOME OR PROPERTY [WHICH HAS NOT BEEN OR WOULD NOT BE DISCLO SED 69 ] FOR THE PURPOSES OF THE INDIAN INCOME-TAX ACT 1922 (11 OF 1922) OR THIS ACT (HEREINAFTER IN THIS SECTION REFERRED TO AS THE UN DISCLOSED INCOME OR PROPERTY) [THEN (A) THE [DIRECTOR GENERAL OR DIRECTOR] OR THE [CHIE F COMMISSIONER OR COMMISSIONER] AS THE CASE MAY BE MAY AUTHORISE AN Y [JOINT DIRECTOR] JOINT COMMISSIONER] [ASSISTANT DIRECTOR [OR DEPUT Y DIRECTOR]] ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER] OR INCOME-TAX OFFICER] OR (B) SUCH [JOINT DIRECTOR] OR [JOINT COMMISSIONER ] AS THE CASE MAY BE MAY AUTHORISE ANY [ASSISTANT DIRECTOR [OR DEPU TY DIRECTOR]] [ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER] OR INCOME-TAX OFFICER] (THE OFFICER SO AUTHORISED IN ALL CASES BEING HEREI NAFTER REFERRED TO AS THE AUTHORISED OFFICER) TO] (I) ENTER AND SEARCH ANY [BUILDING PLACE VESSEL VEHICLE OR AIRCRAFT] WHERE HE HAS REASON TO SUSPECT THAT SUCH BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE KEPT; (II) BREAK OPEN THE LOCK OF ANY DOOR BOX LOCKER SAFE ALMIRAH OR OTHER RECEPTACLE FOR EXERCISING THE POWERS CONFERRED BY C LAUSE (I) WHERE THE KEYS THEREOF ARE NOT AVAILABLE; [(IIA) SEARCH ANY PERSON WHO HAS GOT OUT OF OR IS ABOUT TO GET INTO OR IS IN THE BUILDING PLACE VESSEL VEHICLE OR AIRCRAF T IF THE AUTHORISED OFFICER HAS REASON TO SUSPECT THAT SUCH PERSON HAS SECRETED ABOUT HIS PERSON ANY SUCH BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULL ION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING;] [(IIB) REQUIRE ANY PERSON WHO IS FOUND TO BE IN P OSSESSION OR CONTROL OF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE FORM OF ELECTRONIC RECORD AS DEFINED IN CLAUSE (T) OF SUB-S ECTION (1) OF SECTION 2 OF THE INFORMATION TECHNOLOGY ACT 2000 (21 OF 2000) TO AFFORD THE AUTHORISED OFFICER THE NECESSARY FACILITY TO INSPEC T SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS;] (III) SEIZE ANY SUCH BOOKS OF ACCOUNT OTHER DOCUME NTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND AS A RESULT OF SUCH SEARCH: [ PROVIDED THAT BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BEING STOCK-IN-TRADE OF THE BUSINESS FOUND AS A RE SULT OF SUCH SEARCH SHALL 10 NOT BE SEIZED BUT THE AUTHORISED OFFICER SHALL MAKE A NOTE OR INVENTORY OF SUCH STOCK-IN-TRADE OF THE BUSINESS;] (IV) PLACE MARKS OF IDENTIFICATION ON ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR MAKE OR CAUSE TO BE MADE EXTRACTS OR C OPIES THEREFROM; (V) MAKE A NOTE OR AN INVENTORY OF ANY SUCH MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING : [ PROVIDED THAT WHERE ANY BUILDING PLACE VESSEL VEHICLE OR AIRCRAFT REFERRED TO IN CLAUSE (I) IS WITHIN THE AREA OF JUR ISDICTION OF ANY 87 [CHIEF COMMISSIONER OR COMMISSIONER] BUT SUCH [CHIEF COMM ISSIONER OR COMMISSIONER] HAS NO JURISDICTION OVER THE PERSON R EFERRED TO IN CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C) THEN NOTWITHSTAND ING ANYTHING CONTAINED IN SECTION [120] IT SHALL BE COMPETENT FOR HIM TO EXE RCISE THE POWERS UNDER THIS SUB-SECTION IN ALL CASES WHERE HE HAS REASON T O BELIEVE THAT ANY DELAY IN GETTING THE AUTHORISATION FROM THE [CHIEF COMMIS SIONER OR COMMISSIONER] HAVING JURISDICTION OVER SUCH PERSON MAY BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE :] [ PROVIDED FURTHER THAT WHERE IT IS NOT POSSIBLE OR PRACTICABLE TO TA KE PHYSICAL POSSESSION OF ANY VALUABLE ARTICLE OR THIN G AND REMOVE IT TO A SAFE PLACE DUE TO ITS VOLUME WEIGHT OR OTHER PHYSICAL C HARACTERISTICS OR DUE TO ITS BEING OF A DANGEROUS NATURE THE AUTHORISED OFF ICER MAY SERVE AN ORDER ON THE OWNER OR THE PERSON WHO IS IN IMMEDIATE POSS ESSION OR CONTROL THEREOF THAT HE SHALL NOT REMOVE PART WITH OR OTHE RWISE DEAL WITH IT EXCEPT WITH THE PREVIOUS PERMISSION OF SUCH AUTHORISED OFF ICER AND SUCH ACTION OF THE AUTHORISED OFFICER SHALL BE DEEMED TO BE SEIZUR E OF SUCH VALUABLE ARTICLE OR THING UNDER CLAUSE (III):] [PROVIDED ALSO THAT NOTHING CONTAINED IN THE SECOND PROVISO SHALL APPLY IN CASE OF ANY VALUABLE ARTICLE OR THING BEING STOCK- IN-TRADE OF THE BUSINESS.] [(1A) WHERE ANY (CHIEF COMMISSIONER OR COMMISSIONE R] IN CONSEQUENCE OF INFORMATION IN HIS POSSESSION HAS REASON TO SUS PECT THAT ANY BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING IN RESPECT OF WHICH AN OFFICER HAS BEEN AUTHORISED BY THE [DIRECTOR GENERAL OR DIRECTOR] OR ANY OTHER [CHIEF COMMISSIONER OR COMMISSIONER] OR ANY SUCH [JOINT DIRECTOR] OR [JOIN T COMMISSIONER] AS MAY BE EMPOWERED IN THIS BEHALF BY THE BOARD TO TAK E ACTION UNDER CLAUSES (I) TO (V) OF SUB-SECTION (1) ARE OR IS KEP T IN ANY BUILDING PLACE VESSEL VEHICLE OR AIRCRAFT NOT MENTIONED IN THE AU THORISATION UNDER SUB- SECTION (1) SUCH [CHIEF COMMISSIONER OR COMMISSION ER] MAY NOTWITHSTANDING ANYTHING CONTAINED IN SECTION [120] AUTHORISE THE SAID OFFICER TO TAKE ACTION UNDER ANY OF THE CLAUSES AFO RESAID IN RESPECT OF SUCH BUILDING PLACE VESSEL VEHICLE OR AIRCRAFT.] (2) THE AUTHORISED OFFICER MAY REQUISITION THE SERV ICES OF ANY POLICE OFFICER OR OF ANY OFFICER OF THE CENTRAL GOVERNMENT OR OF BOTH TO ASSIST HIM FOR ALL OR ANY OF THE PURPOSES SPECIFIED IN SUB -SECTION (1) [OR SUB- SECTION (1A)] AND IT SHALL BE THE DUTY OF EVERY SUC H OFFICER TO COMPLY WITH SUCH REQUISITION. (3) THE AUTHORISED OFFICER MAY WHERE IT IS NOT PRA CTICABLE TO SEIZE ANY SUCH BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULL ION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING [FOR REASONS OTHER THAN THOSE MENTIONED IN THE SECOND PROVISO TO SUB-SECTION (1) ] SERVE AN OR DER ON THE OWNER OR THE PERSON WHO IS IN IMMEDIATE POSSESSION OR CONTROL TH EREOF THAT HE SHALL NOT 11 REMOVE PART WITH OR OTHERWISE DEAL WITH IT EXCEPT WITH THE PREVIOUS PERMISSION OF SUCH OFFICER AND SUCH OFFICER MAY TAK E SUCH STEPS AS MAY BE NECESSARY FOR ENSURING COMPLIANCE WITH THIS SUB-SEC TION. [EXPLANATION.FOR THE REMOVAL OF DOUBTS IT IS HER EBY DECLARED THAT SERVING OF AN ORDER AS AFORESAID UNDER THIS SUB-SEC TION SHALL NOT BE DEEMED TO BE SEIZURE OF SUCH BOOKS OF ACCOUNT OTHE R DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG UNDER CLAUSE (III) OF SUB-SECTION (1).] (4) THE AUTHORISED OFFICER MAY DURING THE COURSE O F THE SEARCH OR SEIZURE EXAMINE ON OATH ANY PERSON WHO IS FOUND TO BE IN PO SSESSION OR CONTROL OF ANY BOOKS OF ACCOUNT DOCUMENTS MONEY BULLION JE WELLERY OR OTHER VALUABLE ARTICLE OR THING AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMINATION MAY THEREAFTER BE USED IN EVIDENCE IN ANY PROCEEDING UNDER THE INDIAN INCOME-TAX ACT 1922 (11 OF 1922) OR UNDER THIS ACT. [EXPLANATION.FOR THE REMOVAL OF DOUBTS IT IS HER EBY DECLARED THAT THE EXAMINATION OF ANY PERSON UNDER THIS SUB-SECTION MA Y BE NOT MERELY IN RESPECT OF ANY BOOKS OF ACCOUNT OTHER DOCUMENTS OR ASSETS FOUND AS A RESULT OF THE SEARCH BUT ALSO IN RESPECT OF ALL MA TTERS RELEVANT FOR THE PURPOSES OF ANY INVESTIGATION CONNECTED WITH ANY PR OCEEDING UNDER THE INDIAN INCOME-TAX ACT 1922 (11 OF 1922) OR UNDER THIS ACT.] [(4A) WHERE ANY BOOKS OF ACCOUNT OTHER DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE O F A SEARCH IT MAY BE PRESUMED (I) THAT SUCH BOOKS OF ACCOUNT OTHER DOCUMENTS MO NEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONG S TO SUCH PERSON ; (II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS ARE TRUE ; AND (III) THAT THE SIGNATURE AND EVERY OTHER PART OF SU CH BOOKS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HAND WRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUME D TO HAVE BEEN SIGNED BY OR TO BE IN THE HANDWRITING OF ANY PART ICULAR PERSON ARE IN THAT PERSONS HANDWRITING AND IN THE CASE OF A DOCUMENT STAMPED EXECUTED OR ATTESTED THAT IT WAS DULY STAMPED AND EXECUTED OR ATTESTED BY THE PERSON BY WHOM IT PURPORTS TO HAVE BEEN SO EXECUTED OR ATT ESTED.] (5) [***] (6) [***] (7) [***] (8) THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS SEIZED UNDER SUB-SECTION (1) [OR SUB-SECTION (1A)] SHALL NOT BE RETAINED BY THE AUTHORISED OFFICER FOR A PERIOD EXCEEDING [THIRTY DAYS FROM THE DATE OF THE ORDER OF ASSESSMENT UNDER [ SECTION 153A OR] CLAUSE (C) OF SECTION 158BC ] UNLESS THE REASONS FOR RETAINING THE SAME ARE RECORDED BY HIM IN WRITI NG AND THE APPROVAL OF THE [CHIEF COMMISSIONER COMMISSIONER DIRECTOR GEN ERAL OR DIRECTOR] FOR SUCH RETENTION IS OBTAINED : PROVIDED THAT THE [CHIEF COMMISSIONER COMMISSIONER DIRECT OR GENERAL OR DIRECTOR] SHALL NOT AUTHORISE THE RETENTION OF T HE BOOKS OF ACCOUNT AND OTHER DOCUMENTS FOR A PERIOD EXCEEDING THIRTY DAYS AFTER ALL THE PROCEEDINGS UNDER THE INDIAN INCOME-TAX ACT 1922 ( 11 OF 1922) OR THIS 12 ACT IN RESPECT OF THE YEARS FOR WHICH THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS ARE RELEVANT ARE COMPLETED. [(8A) AN ORDER UNDER SUB-SECTION (3) SHALL NOT BE IN FORCE FOR A PERIOD EXCEEDING SIXTY DAYS FROM THE DATE OF THE ORDER.] (9) THE PERSON FROM WHOSE CUSTODY ANY BOOKS OF ACCO UNT OR OTHER DOCUMENTS ARE SEIZED UNDER SUB-SECTION (1) [OR SUB- SECTION (1A)] MAY MAKE COPIES THEREOF OR TAKE EXTRACTS THEREFROM IN THE PRESENCE OF THE AUTHORISED OFFICER OR ANY OTHER PERSON EMPOWERED BY HIM IN THIS BEHALF AT SUCH PLACE AND TIME AS THE AUTHORISED OFFICER MAY A PPOINT IN THIS BEHALF. [(9A) WHERE THE AUTHORISED OFFICER HAS NO JURISDIC TION OVER THE PERSON REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OR CLAUSE ( C) OF SUB-SECTION (1) THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING (HEREAFTER IN THIS SECTION AND IN SECTIONS 132A AND 132B REFERRED TO AS THE ASSETS) SEIZED UNDER THAT SUB-S ECTION SHALL BE HANDED OVER BY THE AUTHORISED OFFICER TO T HE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH PERSON WITHIN A PERIO D OF SIXTY DAYS FROM THE DATE ON WHICH THE LAST OF THE AUTHORISATIONS FOR SE ARCH WAS EXECUTED AND THEREUPON THE POWERS EXERCISABLE BY THE AUTHORISED OFFICER UNDER SUB- SECTION (8) OR SUB-SECTION (9) SHALL BE EXERCISABLE BY SUCH ASSESSING OFFICER.] (10) IF A PERSON LEGALLY ENTITLED TO THE BOOKS OF A CCOUNT OR OTHER DOCUMENTS SEIZED UNDER SUB-SECTION (1) [OR SUB-SECT ION (1A)] OBJECTS FOR ANY REASON TO THE APPROVAL GIVEN BY THE [CHIEF COMM ISSIONER COMMISSIONER DIRECTOR GENERAL OR DIRECTOR] UNDER S UB-SECTION (8) HE MAY MAKE AN APPLICATION TO THE BOARD STATING THERE IN THE REASONS FOR SUCH OBJECTION AND REQUESTING FOR THE RETURN OF THE BOOK S OF ACCOUNT OR OTHER DOCUMENTS [AND THE BOARD MAY AFTER GIVING THE APPL ICANT AN OPPORTUNITY OF BEING HEARD PASS SUCH ORDERS AS IT THINKS FIT]. (11) [***] (11A) [***] (12) ***] [(13) THE PROVISIONS OF THE CODE OF CRIMINAL PROC EDURE 1973 (2 OF 1974) RELATING TO SEARCHES AND SEIZURE SHALL AP PLY SO FAR AS MAY BE TO SEARCHES AND SEIZURE UNDER SUB-SECTION (1) OR SUB-S ECTION (1A).] (14) THE BOARD MAY MAKE RULES IN RELATION TO ANY SEARCH OR SEIZURE UNDER THIS SECTION ; IN PARTICULAR AND WITHOUT PRE JUDICE TO THE GENERALITY OF THE FOREGOING POWER SUCH RULES MAY PROVIDE FOR THE PROCEDURE TO BE FOLLOWED BY THE AUTHORISED OFFICER (I) FOR OBTAINING INGRESS INTO [ANY BUILDING PLACE VESSEL VEHICLE OR AIRCRAFT] TO BE SEARCHED WHERE FREE INGRESS THERETO IS NOT AVAILABLE ; (II) FOR ENSURING SAFE CUSTODY OF ANY BOOKS OF ACCO UNT OR OTHER DOCUMENTS OR ASSETS SEIZED. [EXPLANATION 1.FOR THE PURPOSES OF SUB-SECTION (9A ) EXECUTION OF AN AUTHORISATION FOR SEARCH SHALL HAVE THE SAME MEANI NG AS ASSIGNED TO IT IN EXPLANATION 2 TO SECTION 158BE .] 13 EXPLANATION 2.IN THIS SECTION THE WORD PROCEEDI NG MEANS ANY PROCEEDING IN RESPECT OF ANY YEAR WHETHER UNDER TH E INDIAN INCOME-TAX ACT 1922 (11 OF 1922) OR THIS ACT WHICH MAY BE P ENDING ON THE DATE ON WHICH A SEARCH IS AUTHORISED UNDER THIS SECTION OR WHICH MAY HAVE BEEN COMPLETED ON OR BEFORE SUCH DATE AND INCLUDES ALSO ALL PROCEEDINGS UNDER THIS ACT WHICH MAY BE COMMENCED AFTER SUCH DATE IN RESPECT OF ANY YEAR.] 10.1 SECTION 153A OF THE IT ACT STARTS WITH THE WO RD NOTWITHSTANDING ANYTHING CONTAINED IT IS NON-OBS TANTE CLAUSE. FOR APPLICABILITY OF ABOVE PROVISION THE INITIATION OF SEARCH IS NECESSARY. ONCE A WARRANT OF AUTHORIZATION OR REQUISITION IS I SSUED AND SEARCH IS CONDUCTED AND PANCHNAMA IS DRAWN THE COMPLETED ASS ESSMENTS FOR THE ALL THE RELEVANT YEARS WOULD GET REOPENED IRRESPECTIVE OF WHETHER ANY INCRIMINATING MATERIAL IS FOUND OR NOT IN RELATION TO A PARTICULAR AY. IN OTHER WORDS EVEN IF THE MATERIAL FOUND SHOWS THE C ONCEALMENT IN ONLY ONE YEAR ALL THE COMPLETED ASSESSMENTS FALLING IN THE PERIOD OF SIX AYS PRECEDING THE YEAR OF SEARCH WILL GET REOPEN. THERE WAS AN IDENTICAL PROVISION CONTAINED IN CHAPTER XIV-B OF THE ACT WH ICH PROVIDES THAT WHERE AFTER 30 TH JUNE 1995 A SEARCH IS INITIATED U/S 132 OR BOOKS ACCOUNTS ETC. ARE REQUISITIONED U/S 132A THE AO SH ALL PROCEED TO ASSESS UNDISCLOSED INCOME IN ACCORDANCE WITH PROVISIONS OF CHAPTER XIV-B FOR MAKING ASSESSMENT FOR BLOCK PERIOD BUT IN THE BLOCK ASSESSMENTS THE QUESTION OF ASSESSING AN UNDISCLOSED INCOME IN RELA TION TO ANY AY WAS RESTRICTED TO THE INCRIMINATING MATERIAL ON UNDISCL OSED ASSETS DISCOVERED DURING THE COURSE OF SEARCH AND SEIZURE OR IN THE P OST SEARCH INQUIRY THE MATERIAL WAS RELATABLE TO SUCH EVIDENCE DISCOVERED IN SEARCH. THE INCOME ASSESSED IN THE REGULAR ASSESSMENTS WAS NOT TO BE C ONSIDERED IN THE BLOCK ASSESSMENTS. HOWEVER IN THE PRESENT PROVISIONS U/S 153A THERE IS NO SUCH PROVISION PROVIDED IN THE ACT. ONCE WARRANT OF AUTH ORIZATION IS ISSUED AND THE SEARCH IS CONDUCTED AND PANCHNAMA IS DRAWN THE ASSESSMENTS FOR ALL THE SEVEN YEARS INCLUDING THE CURRENT YEAR HAVE TO BE COMPLETED U/S 153A 153B AND 153C. EVEN THE ASSESSMENTS WHICH ARE COMPL ETED BEFORE THE DATE OF SEARCH SHALL GET REOPENED AND THOSE ASSESSM ENTS WHERE THE PROCEEDINGS ARE PENDING AT THE TIME OF SEARCH SHALL ABATE. THE AO THEREFORE SHALL ASSESS OR REASSESS SUCH INCOME FOR ALL THESE YEARS. 10.2 THE ABOVE PROVISION THEREFORE PROVIDES FOR REOPENING OF THE COMPLETED ASSESSMENT OR ABATEMENT OR THE PENDING AS SESSMENTS TAKES PLACE IRRESPECTIVE OF WHETHER ANY INCRIMINATING MAT ERIAL IS FOUND DURING THE COURSE OF SEARCH OR NOT. IT CAN BE ILLUSTRATED BY TAKING AN EXAMPLE THAT IF DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDI NGS CERTAIN UNACCOUNTED VALUABLES OR MONEY IS FOUND AT THE TIME OF SEARCH WITHOUT THERE BEING INCRIMINATING MATERIAL OR DOCUMENT FOR ANY OTHER YEAR OR YEARS EVEN THEN ALL THE SIX ASSESSMENTS PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH TOOK PLACE SHALL GET REOPENED. SIMILAR LY IF REQUISITION IS MADE THEN IRRESPECTIVE OF WHETHER THERE IS ANYTHING INCRIMINATING FOUND AGAINST HIM IN RELATION TO OTHER YEAR OR YEARS OR N OT THE ASSESSEE HAS TO UNDERGO THE RIGOR OF THE ASSESSMENT PROCEEDINGS FOR ALL THE SIX YEARS AS WELL AS THE YEAR UNDER SEARCH. 14 11. SECTION 153A WOULD BE APPLICABLE WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNTS OR OTHER DOC UMENTS OR ANY ASSSETS ARE REQUISITIONED UNDER SECTION 132A OF THE ACT AFT ER 31 ST MAY 2003. THEREFORE BEFORE INVOKING THE PROVISIONS OF SECTIO N 153A OF THE ACT IT WOULD BE NECESSARY TO COMPLY WITH THE PROVISIONS CO NTAINED UNDER SECTION 132(1) OF THE ACT. SALIENT FEATURE OF SECTION 132( 1) IS THAT WHERE THE DIRECTOR GENERAL OR DIRECTOR OR THE CHIEF COMMISSIO NER OR COMMISSIONER IN CONSEQUENCE OF INFORMATION IN HIS POSSESSION HAS REASON TO BELIEVE THAT ANY PERSON FAILED TO PRODUCE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS IN RESPONSE TO SUMMONS OR THAT ANY PERSON TO WHOM SUMMONS HAVE BEEN ISSUED HAS NOT OR MIGHT NOT OR WOULD NOT PRODUCE ANY BOOKS OF ACCOUNTS OR DOCUMENTS OR THAT ANY PERSON IS IN POSS ESSION OF ANY MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE IN HIS POSSESSION WHICH HAS NOT BEEN OR WOULD NOT BE DISCLOSED FOR THE PURPOSE OF THIS ACT (HEREINAFTER REFERRED TO AS UNDISCLOSED INCOME OR PROPERTY) THEN THE DIRECTOR GENERAL DIRECTOR OR CHIEF COMMISSIONER OR COMMISS IONER AS THE CASE MAY BE MAY AUTHORIZE ANY JOINT DIRECTOR ASSISTAN T DIRECTOR ASSISTANT COMMISSIONER OF DY. COMMISSIONER OF INCOMETAX CALL ED THE AUTHORIZED OFFICER TO ENTER AND SEARCH ANY BUILDING PLACE V ESSEL VEHICLE OR AIR- CRAFT ETC. WHERE HE HAS REASON TO SUSPECT THAT SUC H BOOKS OF ACCOUNTS OTHER DOCUMENTS MONEY BULLION JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE KEPT BREAK OPEN THE LOCK OF ANY DOOR ET C. SEARCH ANY PERSON WHO IS ABOUT TO GO FROM THE ABOVE PREMISES REQUIRE ANY PERSON TO ACCOUNT FOR THE BOOKS OF ACCOUNTS OR DOCUMENTS SEIZE ANY S UCH BOOKS OF ACCOUNTS OR DOCUMENTS MONEY BULLION JEWELLERY ETC. OR TH INGS FOUND AS A RESULT OF SUCH SEARCH AND MAY PLACE MARK OF IDENTIFICATION ON ANY BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR TAKE COPY THEREOF AN D TO PREPARE INVENTORY OF THE SAME. THE PURPOSE OF SECTION 132 FOR ISSUE OF WARRANT OF AUTHORIZATION IS TO UNEARTH DETECT AND TO TAKE POS SESSION OF THE UNACCOUNTED/UNDISCLOSED INCOME OR PROPERTY. THE ME RE ISSUE OF WARRANT OF AUTHORIZATION WITHOUT THERE BEING SEARCH OF THE PREMISES MENTIONED IN THE WARRANT OF AUTHORIZATION WOULD BE MEANINGLESS A ND WOULD NOT SERVE THE PURPOSE OF SECTION 132 OF THE ACT. IT MAY BE I LLUSTRATED BY TAKING AN EXAMPLE THAT IF WARRANT OF AUTHORIZATION UNDER SECT ION 132 IS ISSUED IN THE NAME OF A AFTER 31.5.2003 BUT HIS PREMISES IS NOT SEARCHED FOR THE PURPOSE OF EXECUTING THE WARRANT OF AUTHORIZATION A ND THE WARRANT OF AUTHORIZATION IS KEPT UNEXECUTED THE QUESTION ARIS ES WHETHER THE ASSESSING OFFICER STILL SHOULD PROCEED UNDER SECT ION 153A OF THE ACT FOR THE PURPOSE OF FRAMING THE ASSESSMENT OR REASSESSME NT OF THE SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEARS RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS INITIATED OR REQUISITION IS MADE WITHOUT EXECUTING THE SEARCH WARRANT. THE ANSWER WO ULD BE NO BECAUSE IT WOULD BE A FUTILE EXERCISE. IT MAY BE ADDED HERE THAT JURISDICTION CAN BE ASSUMED BY THE ASSESSING OFFICER TO INITIATE ASSESS MENT PROCEEDINGS TO ISSUE NOTICES ONCE SEARCH IS INITIATED UNDER SECTIO N 132/REQUISITION MADE UNDER SECTION 132A. HE GETS ACTUAL JURISDICTION ON LY ON ISSUE OF NOTICE WHICH COULD BE ISSUED UNDER SECTION 153A (UNLIKE SE CTION 158BC(A) IN BLOCK ASSESSMENT) WITH NO NECESSITY FOR INFERENCE O F ESCAPEMENT OF INCOME OR UNDER-ASSESSMENT AS UNDER SECTION 147. SHOULD I T MEAN THAT A MERE SEARCH WILL ENABLE REASSESSMENT PROCEEDINGS BY-PASS ING OR IGNORING THE 15 REQUIREMENTS OF SECTION 147. THE ONLY PART OF PROCE DURE DISPENSED WITH UNDER SECTION 153A OF IT ACT ON COMPARISON WITH SEC TION 147 IS THAT THERE IS NO REASON FOR RECORDING REASONS AND FOR APPROVAL BY HIGHER AUTHORITIES BEFORE ISSUE OF NOTICE OF REASSESSMENT. FURTHER T HERE CANNOT BE AUTOMATIC JURISDICTION FOR 6 BACK YEARS EVEN FOR THOSE ENTITI ES WHICH MAY NOT BE IN EXISTENCE FOR ALL THE SIX YEARS INDICATING THAT THE PROVISION IS EXPECTED TO BE REASONABLY EXERCISED. IT SHOULD THEREFORE FOLLO W THAT THERE SHOULD BE PRIMA FACIE INFERENCE OF LIABILITY FOR INVOKING JUR ISDICTION UNDER SECTION 153A OF THE IT ACT. WE MAY ADD THAT IN SECTION 153 A(B) IT IS SPECIFICALLY PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF SIX YEARS IMMEDIATELY PRECEDING THE ASSES SMENT YEARS RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. IT WOULD THEREFORE CLARIFY THAT NOT ONLY THE WARRANT OF AUTHORIZATION IS TO BE ISSUED IN THE NAME OF THE AS SESSEE BUT SEARCH SHALL HAVE TO BE NECESSARILY CONDUCTED OR IN CASE OF REQU ISITION UNDER SECTION 132A THE REQUISITION IS TO BE MADE ACTUALLY. HON BLE ALLAHABAD HIGH COURT IN THE CASE OF CHANDRA PRAKASH AGRAWAL V. CIT ; 287 ITR 172 CONSIDERING THE DEFINITION OF REQUISITION UNDER SEC TION 132A OF THE ACT AS IS REFERRED TO IN SECTION 158BA OF THE ACT OBSERVED THAT THE WORD REQUISITION MEANS TAKING OF ACTUAL POSSESSION. TH E REQUISITION IS COMPLETE ONLY WHEN THE SEIZED BOOKS OF ACCOUNTS AND OTHER DOCUMENTS WHICH HAVE BEEN REQUISITIONED HAVE BEEN DELIVERED T O THE REQUISITIONING AUTHORITY. THE PROVISIONS OF SECTION XIV-B OF THE A CT WOULD COME INTO PLAY ONLY WHEN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ASSETS ARE ACTUALLY RECEIVED BY THE ASSESSING OFFICER PURSUANT TO THE R EQUISITION MADE UNDER SECTION 132A. IT WAS HELD - HELD THAT NO SEARCH UNDER SECTION 132 HAD BEEN CONDUCTED BY THE INCOMETAX DEPARTMENT. THE SEARCH IF ANY W AS CONDUCTED ON JUNE 7/8 OF 2001 BY THE CENTRAL EXCISE DEPARTMENT. THE INCOMETAX DEPARTMENT HAD SENT A REQUISITION ON MARCH 27 2002 UNDER SECTION 132A OF THE ACT REQUISITIONING THE BOOKS OF ACCOUNTS AND OTHER DOCUMENTS SEIZED BY THE CENTRAL EXCISE DEPARTMENT. THE RECORD OF TH E PROCEEDING DATED APRIL 18 2002 SHOWED THAT THE REQUISITION WAS NOT FULLY EXECUTED AS ALL THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS HAD NOT BEEN D ELIVERED TO THE REQUISITIONING AUTHORITY. THE PROCEEDINGS INITIATED UNDER SECTION 148 WERE VALID. HOWEVER IN THE PROCEEDINGS FOR REASSESSMENT UNDER SECTION 148 OF THE ACT MATERIAL OR EVIDENCE RELATABLE TO THE DOCU MENTS FOR WHICH THE REQUISITION HAD BEEN SENT UNDER SECTION 132A COULD NOT BE TAKEN INTO CONSIDERATION. THE LEARNED DEPARTMENTAL REPRESENTATIVE FILED A COP Y OF WARRANT OF AUTHORIZATION UNDER SECTION 132 OF THE ACT DATED 27 TH OCTOBER 2004 WHICH IS ISSUED IN THE NAME OF SHRI R.K. SHUKLA M/S RAJ DEVELOPERS M/S RISHI CONSTRUCTION COMPANY WITH THE DIRECTION TO FIND VA LUABLE ARTICLES OR THINGS IN RESIDENTIAL PREMISES AT E-2/274 ARERA CO LONY BHOPAL. IN THE SAID WARRANT OF AUTHORIZATION ALSO THE AUTHORIZED OFFICER WAS DIRECTED TO ENTER AND SEARCH THE BUILDING ETC. PERSONS AND TO SEIZE BOOKS OF ACCOUNTS DOCUMENTS MONEY BULLION JEWELLERY ETC. AS ARE P ROVIDED UNDER SECTION 132 OF THE ACT NOTED ABOVE. 16 11. CONSIDERING THE ABOVE PROVISIONS AS NOTED ABOVE IN THE LIGHT OF THE PROVISIONS OF SECTION 153A OF THE ACT IT WOULD BE CLEAR THAT ONCE THE WARRANT OF AUTHORIZATION OR REQUISITION IS ISSUED A ND SEARCH IS CONDUCTED PANCHNAMA IS DRAWN THE COMPLETED ASSESSMENTS FOR A LL THE RELEVANT YEARS WOULD GET REOPENED IRRESPECTIVE OF WHETHER ANY INCR IMINATING MATERIAL IS FOUND OR NOT IN RELATION TO A PARTICULAR ASSESSMENT YEAR. HOWEVER THE WARRANT OF AUTHORIZATION SHALL HAVE TO BE EXECUTED BY THE AUTHORIZED OFFICER IN ORDER TO JUSTIFY INVOKING OF THE JURISD ICTION BY THE ASSESSING OFFICER UNDER SECTION 153A OF THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON CERTAIN DECISIONS FROM T TJ AND CTR (SUPRA) BUT THEY ARE NOT RELEVANT TO THE MATTER IN ISSUE. IN CASE OF WIPRO FINANCE LIMITED (SUPRA) AS RELIED UPON BY THE LEARNED DEPAR TMENTAL REPRESENTATIVE THE ISSUE BEFORE THE TRIBUNAL WAS WH ETHER THE TRIBUNAL HAS JURISDICTION TO ENTERTAIN APPEAL IN TERMS OF SECTIO N 253(1)(B) OF THE ACT. THE TRIBUNAL CONSIDERING THE ABOVE PROVISIONS CONTA INED UNDER SECTION 253 OF THE ACT HELD THAT INITIATION OF SEARCH COMME NCES WITH THE ISSUE OF AUTHORIZATION BY THE AUTHORITIES AND SINCE IN THAT CASE WARRANT OF AUTHORIZATION WAS ISSUED BY THE DIT ON 30 TH DECEMBER 1996 AND THIS FACT WAS UNDISPUTED ASA THE SAME IS EVIDENT BY THE PANCH NAMA ISSUED OF THE DEPARTMENT THE TRIBUNAL CONCLUDED THAT SEARCH IS D EEMED TO HAVE BEEN INITIATED ON 30 TH DECEMBER 1996 I.E. THE DAY PRIOR TO 1.1.1997. THE REFORE THE TRIBUNAL HAS JURISDICTION IN TERMS OF SECTION 2 53(1)(B) TO HEAR THE APPEAL. THE ABOVE ORDER IS THEREFORE NOT RELEV ANT TO THE MATTER IN ISSUE BEFORE US. CONSIDERING SECTION 153A PARTICULARLY R EAD WITH SUB-CLAUSE (B) IT IS CLEAR THAT NOT ONLY INITIATION OF SEARCH IS MANDATORY BUT CONDUCT OF THE SEARCH IS ALSO MATERIAL WHICH IS NOT PROVIDE D IN THE LANGUAGE OF SECTION 253(1)(B) OF THE ACT. THE DECISION OF THE A LLAHABAD HIGH COURT NOTED ABOVE ALSO SUPPORTS THE ABOVE FINDINGS. AS IS NOTED ABOVE IT IS UNDISPUTED FACT THAT THOUGH WARRANT OF AUTHORIZATI ON IS ISSUED IN THE NAME OF THE ASSESSEE FIRM ON 27 TH OCTOBER 2004 BUT IT IS ADMITTED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT NO SEARCH OPERATION WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE. EVEN IN THE WARRANT OF AUTHORIZATION THE ADDRESS OF THE PLACE TO BE SEARC HED IS NOT THE ADDRESS OF THE ASSESSEE FIRM. ADMITTEDLY NO PANCHNAMA IS ALS O DRAWN IN PURSUANCE WITH THE WARRANT OF AUTHORISATION IN THE CASE OF TH E ASSESSEE. NO DOCUMENTS WERE SEIZED OR IMPOUNDED AS SUCH DURING T HE COURSE OF SEARCH. THE WARRANT OF AUTHORIZATION DATED 27.10.2004 IN TH E NAME OF THE ASSESSEE FIRM STANDS UNEXECUTED. ONLY PARTNERS WERE SEARCHED AS PER SUBMISSION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE AND THE OBS ERVATIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER BUT NO WA RRANT OF AUTHORIZATION IS PRODUCED BEFORE US IF ANY WARRANT OF AUTHORIZATI ON WAS ISSUED TO SEARCH THE PARTNERS OF THE ASSESSEE FIRM UNDER SECTION 132 OF THE ACT. THE LAW IS SETTLED THAT THE PREMISES MENTIONED IN THE WARRANT OF AUTHORIZATION COULD BE SEARCHED BY THE AUTHORIZED OFFICER AS PER THE WA RRANT OF AUTHORIZATION. AS PER SECTION 2(31) THE DEFINITION OF PERSON PRO VIDES ASSESSEE FIRM TO BE DISTINCT FROM INDIVIDUAL. THEREFORE MERE SEARCH IN THE CASE OF PARTNERS WOULD NOT TANTAMOUNT TO SEARCH IN THE CASE OF THE A SSESSEE FIRM. WE FURTHER FIND THAT THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) ASSUMED THAT NO AUTHORIZATION IS ISSUED IN THE CASE OF THE PRESENT ASSESSEE AND ACCORDINGLY QUASHED THE ASSESSMENT ORDERS. HOWEVER THE FACTS ARE 17 OTHERWISE AS NOTED ABOVE BUT THE SAME WOULD NOT INV ALIDATE THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE CAUSE OF THE FINDINGS NOTED ABOVE. SINCE IN THIS CASE ONLY SURVEY OPERAT ION UNDER SECTION 133A IS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESS EE IT WOULD NOT SATISFY THE REQUIREMENTS OF SECTION 153A OF THE ACT. AS S UCH THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INITIATING PROCEEDINGS OR ASSUMING VALID JURISDICTION UNDER SECTION 153A OF THE ACT AGAINST THE ASSESSEE. WE THEREFORE DO NOT FIND ANY INFIRMITY IN QUASHING TH E ASSESSMENT ORDERS UNDER SECTION 153A OF THE ACT. 12. AS A RESULT THIS ISSUE IS DECIDED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. 13. AS A RESULT ALL THE APPEALS OF THE REVENUE O N THIS ISSUE ARE DISMISSED. 11. CONSIDERING THE ABOVE DISCUSSION AND FOLLOWING OUR EARLIER ORDER IN THE CASE OF M/S RISHI CONSTRUCTION (SUPRA) WE A RE OF THE VIEW THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESS EE AND AGAINST THE REVENUE BY OUR EARLIER ORDER. THE DEPARTMENTAL APP EALS ARE THEREFORE LIABLE TO BE DISMISSED. WE MAY ALSO ADD THAT THE D ECISIONS REFERRED TO BY THE LEARNED DEPARTMENTAL REPRESENTATIVE ARE NOT ON THE ISSUE AND WOULD NOT SUPPORT THE CONTENTION OF THE REVENUE. THE LEA RNED DEPARTMENTAL REPRESENTATIVE DURING THE COURSE OF ARGUMENTS ALSO REFERRED TO THE STATEMENT OF V. ASNANI RECORDED ON 3.11.2004 EXPLAI NING THAT THE PROPERTY WHERE SEARCH IS CONDUCTED AT HIS RESIDENCE IS THE A SSET OF THE ASSESSEE COMPANY. THIS ITSELF WOULD NOT ABSOLVE THE REVENUE FROM PROVING THE INGREDIENTS OF SECTION 153A AND 132 OF THE ACT BECA USE IN THE WARRANT OF AUTHORISATION DATED 27 TH OCTOBER 2004 THE AUTHORISED OFFICER WAS DIRECTED TO SEARCH THE PREMISES OF THE ASSESSEE COM PANY AT MUMBAI. HOWEVER NO COMPLIANCE IS MADE. NO REASONS ARE EXP LAINED AS TO UNDER WHAT CIRCUMSTANCES THE PREMISES OF V. ASNANI WAS SE ARCHED. THE SAME MAY ALSO NOT BE RELEVANT IN THIS CASE BECAUSE THE A SSESSEE IS A SEPARATE LEGAL ENTITY AS AGAINST THE STATUS OF V. ASNANI. T HE DECISIONS CITED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE ARE THEREFORE NOT APPLICABLE. THE LEARNED DEPARTMENTAL REPRESENTATIVE LASTLY ARGUED T HAT EXECUTION OF WARRANT OF AUTHORIZATION IS NOT NECESSARY BECAUSE T HE SAME RELATES/CONNECTED WITH THE LIMITATION ONLY AS REQUI RED UNDER SECTION 153B OF THE ACT. THE ARGUMENT OF THE LEARNED DEPARTMENT AL REPRESENTATIVE IS NOT TENABLE IN VIEW OF THE ABOVE FINDINGS RATHER SE CTION 153B WOULD SUPPORT THE CONTENTION OF THE LEARNED COUNSEL FOR T HE ASSESSEE BECAUSE AS PER SECTION 153B(1)(A) THE ASSESSING OFFICER SHALL HAVE TO MAKE THE ORDER UNDER SECTION 153A WITHIN A PERIOD OF TWO YEARS FRO M THE END OF THE FINANCIAL YEAR IN WHICH THE LAST AUTHORIZATION FOR SEARCH UNDER SECTION 132 WAS EXECUTED. THIS PROVISION WOULD ALSO SUPPORT TH E CASE OF THE ASSESSEE THAT WARRANT OF AUTHORISATION SHALL HAVE TO BE EXEC UTED BEFORE ASSUMING VALID JURISDICTION UNDER SECTION 153A OF THE ACT. SINCE IN THE CASE OF THE ASSESSEE COMPANY ONLY SURVEY OPERATION UNDER SECTIO N 133A IS CONDUCTED IN THE PREMISES OF THE ASSESSEE COMPANY IT WOULD N OT SATISFY THE REQUIREMENTS OF SECTION 153A OF THE ACT. AS SUCH THE ASSESSING OFFICER IS NOT JUSTIFIED IN INITIATING PROCEEDINGS OR ASSUMING VALID JURISDICTION UNDER SECTION 153A OF THE ACT AGAINST THE ASSESSEE. WE THEREFORE DO NOT FIND 18 ANY INFIRMITY IN QUASHING THE ASSESSMENT ORDERS UND ER SECTION 153A OF THE ACT. 12. AS A RESULT THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 13. AS A RESULT ALL THE DEPARTMENTAL APPEALS ON TH IS ISSUE ARE DISMISSED. THE LEARNED CIT(A) WHILE DISPOSING OF THE APPEALS B EFORE HIM HAS CONSIDERED THE ORDER OF THE LEARNED FIRST APPELLATE AUTHORITY DATED 16.5.2007 IN THE CASE OF M/S ASNANI BUILDERS & DEVELOPERS AGAINST ORDER U/S 153A READ WITH SECTION 143(3) OF THE ACT WHEREIN IT WAS HELD THAT THE ASSE SSMENT WAS WRONGLY COMPLETED U/S 153A OF THE ACT CONSEQUENTLY THE ORD ER WAS TREATED AS NULL AND VOID AND QUASHED BY SPECIFICALLY MENTIONING THAT TH E M/S PRAKASH DWELLINGS IS A SEPARATE ENTITY AND WAS CARRYING ON ITS BUSINESS ENJOYING THE RECEIPTS AND PROFITS EARNED BY IT. THE OWNERSHIP OF PLOT ON WHIC H M/S PRAKASH DWELLINGS DID CONSTRUCTION BELONGED TO M/S ASNANI BUILDERS & DEVE LOPERS LIMITED AND BESIDES THIS THERE WAS OTHER CONNECTION OR CONTROL . EVEN OTHERWISE IN THE AFORESAID ORDER THE TRIBUNAL HAS ALREADY CONSIDERE D THE RELEVANT PROVISIONS OF THE ACT AND ALSO THE DECISION IN THE CASE OF M/S RI SHI CONSTRUCTIONS WIPRO FINANCE LIMITED AND VARIOUS OTHER JUDICIAL PRONOUNC EMENTS INCLUDING THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN CH ANDRAPRAKASH V. CIT; 287 ITR 172 WHICH ARE NOT BEING REPEATED FOR THE SAKE O F BREVITY AND MAY BE READ AS PART AND PARCEL OF THIS ORDER. EVEN OTHERWISE SINC E THE LEARNED RESPECTIVE COUNSELS AGREED THAT THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE CASE OF M/S ASNANI BUILDERS & DEVELOPERS LIMITED (SUPRA) AND NO CONTRARY DECISION/NEW FACTS HAVE BEEN BROUGHT TO OUR NOTICE CONSEQUENTLY RESPECTFULLY FOLLOWING THE 19 SAME WE FIND THAT THERE IS NO MERIT IN THE APPEALS OF THE REVENUE. THE SAME ARE THEREFORE DISMISSED. 5. THE AFORESAID CONCLUSION WILL ALSO COVER ITA NOS .104 TO 108/IND/08 BEING ON IDENTICAL FACTS. 6. IN THE RESULT ALL THESE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON25 TH JANUARY 2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER JANUARY 25 TH 2010 COPY TO APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE DN/-