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2007 (9) TMI 447 - AT - Income TaxAssessment u/s 153A - search on requisition - validity of search conducted u/s 132 - search conducted in the premises in which the assessee may not be carrying on the business - HELD THAT:- The perusal of the panchnama reveals that the search was conducted in respect of SSKI Group wherein the search warrant was served on Mr. Hitesh M. Desai, who is the Manager of SSKI Group, his statement was recorded during the course of search. The books of account as per the Annexure A-1 and other valuables, locker, FD as per Annexure O-1 belonging to SSKI Group were found and seized. Other valuable articles including money as per note in 1, 2, 3, 4 were found but not seized. The assessee claims that none of his books of account were found or seized and in respect of the valuables also the assessee clarifies that none of his valuables were available at the above said address as the said premises were rented out to SSKI group by the assessee and its sister concerns. In the body of order under section 143(3) read with section 153A of the Income-tax Act, the Assessing Officer also observes that ‘there was search and seizure action under section 132 of the Income-tax Act on SSKI Group and by warrant dated 1-8-2003, the assessee was also covered under the search. The premises whereas the assessee was found was not searched. The fact that search u/s 132 of the Act have been conducted on the assessee, is a condition precedent to be satisfied before start of any proceedings against the assessee. Section 158BC of the Income-tax Act, provides the procedure for block assessment in all such cases where search has been conducted u/s 132 or books of account or other documents requisitioned u/s 132A of the Income-tax Act for searches conducted upto 31-5-2003. Thus, the jurisdictional fact of a search being conducted prior to issue of notice u/s 158BC of the Act need to be satisfied. In the present case before us, no search was conducted against the assessee as the premises occupied by the assessee were not entered upon and searched by the Authorised Officer. Mere search of the premises owned by the assessee but rented to another concern does not by any implication prove the conduct of search against the assessee in view of the fact that the assessee was not available at the address searched upon. Mere mentioning of name in the panchnama does not lead to the conclusion that a valid search was conducted against the assessee. In the totality of circumstances, where no search has been conducted against the assessee there is no merit in the issue of notice u/s 153A of the Income-tax Act under which the jurisdictional area of operation is six assessment years immediately preceding the assessment year relevant to the previous year, in which search was conducted. In case, no search is conducted against a person, the period of operation to which the provisions of section 153A would apply, cannot be determined and the invoking of provisions of section 153A of the Act is baseless. Though the provisions of section 158BC of the Act are not applicable to searches conducted after 31-5-2003, but the provisions of section 132 of the Income-tax Act are continuing on the statute implying thereby that the provisions of section 153A of the Act are only applicable in case valid search is conducted against the assessee u/s 132 of the Act. Accordingly, we declare the assessments made against the assessee under the provisions of section 143(3) read with section 153A of the Income-tax Act are null and void and direct the Assessing Officer to cancel the same. Thus, the issue related to the validity of search raised by the assessee is allowed. In view of our decision with regard to the validity of search, we are not adjudicating upon the issues relating to the merits of the case. In the result, all the five appeals filed by the assessee are partly allowed.
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