TMI Blog2007 (8) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,50,000 in IVPs was made by the appellant as trustee as per terms of will dated 15-5-1995 on behalf of late Smt. Asha Devi (sister-in-law of the appellant) for the benefit of unmarried daughters of the deceased, therefore, the income accruing on the said IVPs did not belong to the appellant and deserved to be deleted from the undisclosed income of the appellant for the block period. 3. The learned Assessing Officer has erroneously treated the income for assessment year 1998-99 and 1994-95 as undisclosed income and included it in the total income of the block period, without considering and appreciating that the income for assessment years 1993-94 and 1994-95 was below the taxable limit of respective year therefore, the assessee was not obliged to file the return(s) of income for assessment years 1993-94 and 1994-95 under section 139(1) or any order provision of the Income-tax Act, 1961. 4. That the order of the learned CIT(A)-II, Kanpur is bad in law and contrary to facts to the extent stated in ground Nos. 1 and 2 here above therefore deserves to be modified." 2. The grounds raised by the revenue are as under : "1. That the Learned Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been passed by the learned Assessing Officer by 31-8-2001 and hence, the present order having been passed beyond limitation is illegal, bad in law and be ordered to be quashed. Without prejudice to the above ground ( ii )The alleged consequential warrant of authorization of search signed by the Additional Director of Income-tax appellant and Dr. D.P. Agarwal for search of locker No. 187 P.N.B., Swaroop Nagar, Kanpur, is illegal, bad in law and void ab initio as the learned Additional Director of Income-tax (Inv.), Kanpur, subsequent to 30-10-1998, was not authorised under the Income-tax Act, 1961 to sign and authorize any Income-tax Authority through a warrant of search and hence consequentially there being no valid search warrant in the name of the appellant, the learned Assessing Officer never acquired a legal or valid jurisdiction to initiate proceedings under section 158BC in the present case, therefore, the present order so passed under section 158BC of the Income-tax Act, 1961, being void ab initio and illegal be ordered to be quashed." 4. Learned authorised representative for the assessee submitted that no fresh facts are required to be investigated, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on 23-8-1999 and accordingly block assessment in her case should have been completed within two years from the end of the month for which last warrant was executed. Thus, two years from 31-8-1999 would expire on 31-8-2001 and hence block assessment should have been completed by 31-8-2001. As in the present case, block assessment has been completed on 28-9-2001, it is barred by limitation as per limitation provided under section 158BE. 7. The learned D.R. on the other hand submitted that this is a continuation of search carried out in the case of the assessee by way of warrant of authorization issued in the case of Shri D.P. Agrawal in respect of locker No. 187, P.N.B., Swaroop Nagar, Kanpur. The locker No. 150, P.N.B., Bahraich was in the name of Neelam Agrawal and she owned the entire contents. Therefore, the limitation should be counted from the execution of warrant issued in respect of this locker i.e. locker No. 150, P.N.B., Bahraich. If we count the limitation from this warrant which was finally executed on 7-9-1999 then block assessment order passed on 28-9-2001 would be in order and within limitation. 8. We have considered the submissions of learned D.R. and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch another premises. If the authorities intend to search another premise, they will have to issue another warrant after recording satisfaction as per law. Our view is supported by the provisions of section 132(1) which clearly provides that even though warrant of authorization can be issued in respect of any building, place, vessel, or aircraft in respect of which the authorizing officer has reasons to suspect that the person, against whom the search warrant is being issued, has kept or hidden concealed wealth or income or books or documents relating thereto, but once the authorizing officer has issued the warrant against a particular specific building than thereafter that warrant cannot be a general warrant authorizing the authorized officers (categories of officers as mentioned in that section) to enter and search any building, place, vessel, or aircraft which they (authorized officers) choose. In this regard we refer to that section as under : "132. Search and seizure. (1) Where the Director General or Director or the Chief Commissioner or any such Joint Director or Joint Commissioner as may be empowered in this behalf by the Board, in consequence of information in his pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, vessel, vehicle or aircraft, if the authorised officer has reason to suspect that such person has secreted about his person any such books of account, other documents, money, bullion, jewellery or other valuable article or thing; ( iii )seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search; ( iv )place marks of identification on any books of account or other documents or make or cause to be made extracts or copies 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 jurisdiction of any Chief Commissioner or Commissioner, but such Commissioner has no jurisdiction over the person referred to in clause ( a ) or clause ( b ) or clause ( c ), then, notwithstanding anything contained in section 120 it shall be competent for him to exercise the powers under this sub-section in all cases where he has reason to believe that any delay in getting the authorisation from the Chief Commissioner or Commissioner hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired, to enter such building or place and search therein and in order to effect an entrance into such building or place, to break open any outer or inner door or window of any building or place, whether that of the person to be searched or of any other person, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance." [Emphasis Supplied]. 10. There are steps and procedure for collecting information, material, their verification and consequent formation of belief by the competent authority, that a particular person or persons has/have amassed income and wealth on which taxes have not been paid or is/are in possession of books of account or documents, which are not produced or are unlikely to be produced on issue of summons by the Assessing Officer and such books of account or documents or/and concealed wealth representing income on which taxes are not paid are suspected to be kept or hidden at a particular place or building or vessel or aircraft then that competent authority assuming powers under section 132(1) becomes authorizing officer and authorize certain category of officers as mentioned in that secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the powers conferred by clause ( i ) where the keys thereof are not available;" or clause ( iia ) where it is written that "search any person who has got out of, or is about to get into, or is in, the building, place, vessel, vehicle or aircraft, if the authorised officer has reason to suspect that such person has secreted about his person any such books of account, other documents, money, bullion, jewellery or other valuable article or thing"; it clearly lays down that the authorized officers have to act within and at the premise for which they are authorized to act. They cannot do authorized acts at any other premise. The use of the word "the" before "building, place, vessel, vehicle or aircraft" in clause ( iia ) is in respect of the building, place, vessel, vehicle or aircraft for which they are authorized as per clause ( i ) and not any other building, place, vessel, vehicle or aircraft. Rule 112 of IT rules also, as referred above, makes it clear that the authorized officers can enter, search and do all other acts for which they are authorized, in respect of the premise for which they are authorized. There is no general power in respect of any premise which they consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch under section 132 or for requisition under section 132A , as the case may be, was executed in cases where a search is initiated or books of account or other documents or any assets are requisitioned on or after 1-1-1997. Explanation 2. For the removal of doubts, it is hereby declared that the authorisation referred to in sub-section (1) shall be deemed to have been executed, ( a )in the case of search, on the conclusion of search as recorded in the last panchnama drawn in relation to any person in whose case the warrant of authorisation has been issued, ( b )in the case of requisition under section 132A, on the actual receipt of the books of account or other documents or assets by the Authorised Officer." Explanation 2 given as above under section 158BE is relevant for our purposes. Thus, a search is executed when the last Panchnama was drawn. It is undisputed fact that last Panchnama, in this case of the assessee, was drawn on 23-8-1999 which was in pursuant to warrant of authorization issued in the joint name of Shri D.P. Agrawal and Neelam Agrawal in respect of locker No. 187, P.N.B., Swaroop Nagar, Kanpur. It is not a claim of the revenue that any other war ..... X X X X Extracts X X X X X X X X Extracts X X X X
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