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2014 (9) TMI 1288 - ITAT KOLKATAAssessment proceedings u/s 153A - no valid search had been conducted on the assessee - Whether no incriminating document was found in the search on the Bank accounts as mentioned in the Panchnama? - HELD THAT:- Copy of the warrant is never given to the assessee. It is only the copy of the Panchnama that goes to the assessee. A perusal of the provisions of section 132(1) shows that the warrant is to be specifically in the name of the person and it has to specify the place. A perusal of the Panchnama clearly shows that the name of the assessee is mentioned in the Panchnama, the place has been identified categorically as the Bank account. On a specific direction to the ld. CIT, DR, he has shown the copy of the warrant to the Bench. The warrant also contains the name of the assessee and the Bank account number and the Branch name, etc. In any case, when an assessee is challenging the warrant to be illegal, then it is required to be challenged by filing affidavit alleging the same. In any case, such an affidavit has not been filed in any of the Cross Objections in the bunch of appeals. Consequently we are of the view that the search had validly been conducted on the assessee. Warrant was served on the Bank Manager and not on the assessee and that the Panchnama is signed by the Bank Manager and not the assessee and, therefore, the search is invalid - The Bank account of an assessee is his private accounts, nobody, not even the Bank itself can do any transaction through such Bank account unless otherwise authorise to do so by the account holder. In effect the Bank acts as the agent of the assessee. The Bank Manager, the representative of the Bank, is admittedly responsible for anything that goes on in respect of the specified Bank accounts of the account holders. The Bank is answerable to the account holder for any act done with the account of the account holder without the instruction of the account holder. Thus the execution of the warrant on the Bank Manager of the Branch where the assessee was maintaining its accounts, which were searched, cannot be faulted with. Once it is held that the search on the Bank account is valid then admittedly the provisions of section 153A would operate. In the case of Dr. Mansukh Kanjibhai Shah-vs.-ACIT [2010 (5) TMI 536 - ITAT, AHMEDABAD] shows that in the said decision the Coordinate Bench of this Tribunal has not held that the execution of the warrant by drawing of the Panchnama was not the search on the assessee. In that case, the service of the warrant was on the Bank Manager of the Trust. It was because the service of the warrant was on the Bank Manager of the Trust, it was held that it was not search on the assessee in the individual case of the assessee. In the assessee's case, the search warrant is executed on the Bank Manager of the Branch where the account of the assessee is operating. In fact, the decision in the case of Dr. Mansukh Kanjibhai Shah goes against the argument raised by the assessee. As we have held that the search warrant has been rightly executed, the question of abatement does not arise. Levy of interest u/s 234B - Though the ld. A.R. has filed a detailed note at pages 140-145 of the paper book, we are unable to agree with the ld. A.R. in so far as the levy of interest under section 234B is now consequential in nature. The argument that there was no advance tax liability does not hold water in so far as the addition are on which TDS was not liable to be made and the assessee had the liability to pay advance tax. The additions made are clearly under sections 68 & 69 of the Act. In these circumstances, the Cross Objections filed by the assessee stand dismissed. Addition of share application money receipt - Allegation of unaccounted monies as laundered - Shri Santosh Kumar Shah had created a number of shell companies and in his statement subsequently recorded that he is a Director in the assessee-company - HELD THAT:- The web of the intricacies of the transactions being so vast and the facts are being hidden in such web with the intention not coming forward from the assessee we are left with no other alternative but to restore the issue in the Revenue's appeals in respect of the share application money to the file of the Assessing Officer for re-adjudication and we do so. The arguments raised by the ld. A.R. that the decision of Nova Promoters & Finlease Pvt. Ltd. [2012 (2) TMI 194 - DELHI HIGH COURT] does not apply and it is the decision in the case of Gangeswari Metals Pvt. Ltd. [2013 (1) TMI 624 - DELHI HIGH COURT] that is to be applied also does not hold water, in so far as in the present case Shri Santosh Kumar Shah is the Director of the assessee-company, he is the signatory to the return, he is the signatory to the Bank accounts and he has admitted categorically in his statement in the search that he is providing entries. He has explained the methodology adopted by him though not all the beneficiaries in its entirety and he has also gone to the extent of filing settlement application which has been rejected by the Settlement Commission. AO has not been sitting idle, he has been attempting to collect the information which is under the control of the assessees and Shri Santosh Kumar Shah, which the assessee has been successfully delaying and thwarting for reasons best known to assessee and when the case is getting time barred has demanded the explanation from the Assessing Officer as to on what basis he is raising the allegation, when all the evidences are being hidden by the assessee. But instead of dismissing the assessee's claim following the decision in the case of Nova Promoters & Finlease Pvt. Ltd.[Supra], in the interest of justice, the assessee is being granted another opportunity to clean up its case and place all the facts and details before the Assessing Officer for proper adjudication.
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