TMI Blog2012 (8) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... , the impugned assessment is passed on 31.1.2005 which is not passed within the limitation described in section 158BE. The assessment, therefore, is bad in law and has to be quashed - ‘Panchnama’ dated 1.11.2002 cannot give extended time to the A.O for further 2 months when in fact, in the case of these assessees, the search was finally concluded on 6.9.2002 - in favour of assessee. - ITA No. 49/PN/2007 & 123/PN/2007, 124/PN/2007, 330/PN/2007, 331/PN/2007, - - - Dated:- 26-6-2012 - Shri G.S. Pannu And Shri R.S. Padvekar, JJ. Assessee by : Shri.R.G. Nahar Department by : Dr. Prayag Jha, CIT O R D E R Per R.S. Padvekar, JM In this batch of five appeals, three appeals are by three different assessees and two appeals are filed by the Revenue as cross appeals. These appeals are arising out of the Block Assessment framed u/s. 153BC (c) of the I.T. Act 1961 in consequence of search and seizure operation conducted against these assessees on 5.9.2002. 2. We first take the appeals filed by the assessees being ITA No. 49, 123 and 124/PN/2007. The assessees have challenged the validity of the block assessments framed by the A.O. u/s. 158 BC(c ) of the Act by raising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was finally concluded on 6.9.2002 or 7.9.2002 and final the Panchnamas were drawn on those dates. The assessee raised the issue before the Ld CIT(A) and relied on the decision of Hon ble High Court of Bombay in the case of CIT Vs. Mrs. Sandhya P. Naik, 253 ITR 534 (Bom) but assessee s ground was dismissed. 4. We have heard the rival submissions of the parties and perused the record. The Ld Counsel took us through the Paper Book, particularly page Nos. 52 to 58. He submits that as per the Panchnama dated 5.9.2002, (page No. 52 of P.B.-I), cash of Rs. 21,510/- was found but not seized. He submits that the said Panchnama is a common Panchnama in the case of these three assessees. As per the said Panchnama, the warrant of authorization dated 4.9.2002 was executed on 5.9.2002 at 11 A.M and proceedings were closed on 5.9.2002 at 9.30 PM shown as temporarily concluded. He submitted that in case of copies of other Panchnamas i.e. in respect of M/s. Agarwal Stone Company, certain books of account and loose papers were seized. It was also shown in the Panchnama that cash of Rs.2,150/- was found but not seized. He submits that prohibitory order in respect of one cupboard kept in the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same date (copy placed at page No. 58 of the paper book), it was shown that the search commenced on 1.11.2002 at 8.30 A.M. and the proceedings were concluded on same date at 10.10. As per column (8) of the Panchnama, it is shown as finally concluded. As per the admitted position, there was no another warrant of authorization in the case of all the three assessees. As per column 5, the details of the documents seized are to be mentioned. If the prohibitory order was lifted on 1.11.2002, then the search officials should have mentioned in the Panchnama which documents they have seized, which document they have seized and which were allegedly kept in the cupboard in the residence of Shri Sunil Agarwal. Col. No.5 is blank though it is shown that on 1.11.2002, some action was taken in continuation of the execution of the first warrant of authorization and prohibitory order issued showing some documents in said cupboard. 6. Now the question before us, can the second so-called Panchnama gives the benefit to the A.O. for the further period of 2 months when admittedly as per clause (b) to Section 158(1) the A.O was under statutory obligation to pass the assessment order on or before 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orized officer who was assisted by Shri PN Mathew, Inspector, Shri RL Rathi, Inspector and Shri Pawan Kumar, Staff car Driver. It started at 5.50 P.M. and it is in respect of authorization dated 17th December, 2002. It is mentioned that the search was in continuation of the proceedings on 21st December, 2002 and the search party had inspected the seal which were placed on 21st December, 2002 and it was found that the seals were intact as narrated in the order passed u/s 132(3) dated 3.1.2003. In the column relating to assets or documents seized, all the columns are filled as nil. No statement of any person was recorded on that date. It is mentioned that on 3.1.2003, the proceedings were started at 5.50 PM and the proceedings were closed on 3.1.2003 at 6.20 PM and all other columns are nil. The perusal of the panchnama will reveal that except from passing the revocation order u/s 132(3) of the prohibitory order passed on 21st December, 2002 no other activity had taken place. Therefore, from the perusal of the panchnama it is clear that there was no conclusion of search. Whatever material was required to be seized or impounded was already seized/impounded by the Department. The proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of above discussion, we hold that in the present case panchnama dated 3.1.2003 is not a panchnama which finds mentioned in Explanation 2 to section 158BE. Hence, the limitation cannot be governed by the said panchnama. The search essentially was concluded and completed vide panchnama dated 21st December, 2002, when order under the second proviso to section 132(1) was passed deemed seizure of stock of goods of Rs. 25,43,500/-; statement of one person was recorded and a restrain order u/s 132 was passed. Panchnama dated 21st December, 2002 was the last panchnama as described in Explanation 2 to section 158BE and, therefore, the limitation has to be commenced from the said panchnama. It is an undisputed position that if panchnama dated 21st December, 2002 is considered as last panchnama then the time limit of frame assessment u/s 158BC will be 31st December, 2004. As against that, the impugned assessment is passed on 31.1.2005 which is not passed within the limitation described in section 158BE. The assessment, therefore, is bad in law and has to be quashed. 9. Considering the facts of the assessees case, more particularly after carefully examining the last panchnama date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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