TMI Blog2007 (10) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... of the concise grounds after taking into consideration the chart filed by the ld. counsel of the assessee and the arguments made orally at the time of hearing. 3. The first ground of appeal in terms of Ground No. A-1 relates to the legal issue going to the root of the matter wherein the assessee has stated that there was no search warrant issued in the name of the assessee and hence, the block assessment order passed under section 158BC of the Act was void ab initio, bad in law and liable to be quashed. 4.1 Briefly stated, the facts in this regard are that a search and seizure action under section 132 of the Act was conducted on 18-12-1996 at the residential premises where the assessee was staying with her husband Shri Yusuf Razak Dhanani. Consequent to the search action, notice under section 158BC of the Act was issued to the assessee dated 14-10-1997 and in response to the same, the assessee filed return of income for the block period declaring nil undisclosed income. In the course of assessment proceedings, the assessee vide letter dated 15-12-1997 filed on 16-12-1997 addressed to the Dy. Commissioner of Income-tax, Sp. Rg. 22 raised objection stating therein that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommenced on 18-12-1996 and the same was finally concluded on 27-12-1996. The warrant of authorization was dated 11-12-1996 and the same was only in the name of Shri Yusuf R. Dhanani and not in the name of the assessee and, therefore, the ld. counsel of the assessee pleaded that since no search warrant was issued in the name of the assessee, the block assessment order passed under section 158BC of the Act was liable to be quashed. The ld. counsel for the assessee relied upon the decisions in Vishwanath Prasad v. Asstt. CIT [2003] 86 ITD 516 (All.) and Jt. CIT v. Latika Waman [2005] 1 SOT 535 (Mum.) wherein it is held that where authorization is not in the name of a person, the provisions of section 158BC would not be applicable and the notice under section 158BC of the Act cannot be issued to a person who is not subjected to search. 4.3 The ld. counsel for the assessee also drew our attention to the notice issued by the department filed at paper book page 248 to show that the notice was issued under section 158BC of the Act and that there was no proceedings initiated under section 158BD of the Act. The ld. counsel submitted that even the block assessment order was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made considering the same. It was also pointed out that jewellery was found from the lockers and protective addition was made in the assessee s case for the reason that the husband of the assessee had submitted in the course of search action that the jewellery belonged to the assessee however substantive addition was still made in the hands of the husband of the assessee. 4.6 The ld. DR submitted that even though there was no separate warrant of authorization issued in the name of the assessee the evidences found from the premises owned by her as also the jewellery found from the locker were sufficient for making block assessment under the provisions of section 158BC of the Act and that there is no difference as such whether the assessment is made under section 158BC of the Act or section 158BD of the Act. It was argued that even if no search is conducted in respect of the other assessee, the procedure for making the assessment would be covered under section 158BC and hence, there is no requirement to proceed and follow the procedure laid down under section 158BD of the Act. 4.7 In reply, the ld. counsel for the assessee submitted that the Panchanama issued in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is always in respect of a person and not any place or premises as is clear from the provisions of section 132(1) of the Act and hence, even if the assessee was the owner of the premises that do not automatically cover the assessee under the garb of provisions of Chapter XIV-B of the Act and warrant of authorization would still be required if the assessment was to be proceeded under section 158BC of the Act. It was then submitted that provisions of section 158BC and section 158BD are both separate and the procedures have to be adhered to when they are specifically prescribed in the statute. It was contended that section 158BC is invoked in respect of the person searched and section 158BD is invoked in respect of the person who is not subjected to search action but evidences are found showing undisclosed income belonging to him and, therefore, these are not mere procedural formalities and if that be so, then section 158BD of the Act would become redundant. It was submitted that the decisions relied upon earlier takes care of the arguments advanced by the ld. DR wherein it is held that search is always in respect of a person and not premises and further that the procedure laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrant as per the Panchanama furnished is in the name of Shri Yusuf R. Dhanani, husband of the assessee and in the name of Company M/s. Divya Chemicals Ltd. wherein Shri Yusuf R. Dhanani is a director. In respect of the Panchanama issued in respect of the bank lockers, it is seen that the Panchanama is in the names of Shri Yusuf R. Dhanani and the assessee for the simple reason that the bank lockers were in joint names of husband and wife, the name of husband being first in all the lockers. Further, the search of the lockers is a continuation of the search proceedings commenced in relation to the husband of the assessee Shri Yusuf R. Dhanani. As per section 158BB(1) of the Act read with section 132(1) of the Act, the position is clear that in order to assess undisclosed income of any person in accordance with Chapter XIV-B of the Act, a search is a prerequisite for the initiation of block assessment proceedings. This view is taken by various Courts as referred to in the decision of Dhiraj Suri s case ( supra ) at para 8 of the order, the relevant portion of which is as under "It says that the warrant in the case has been issued in the name of Shri J.M.L. Suri who is the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h or seizure of the property belonging to him on the basis of a warrant issued in the name of the firm, no warrant in the name of the petitioner at all having been issued, is valid and tenable. This ground itself is sufficient to quash the order impugned in this petition . The above observations show that a search under section 132 of the Act is person specific and not premises specific. It follows that if the name of the assessee against whom the block assessment has been made, does not figure in the warrant of authorization issued under section 132, the block assessment would be unauthorized, void ab initio. " 6. The facts of the case of the assessee are similar to that of the decision referred to above. In the case of assessee also, there is no search warrant issued in her name and the warrant of authorization was issued only in the name of husband Shri Yusuf R. Dhanani. The search action commenced on 18-12-1996 and was finally concluded on 27-12-1996. The Panchanama issued in the name of the lockers standing in the joint names of Shri Yusuf R. Dhanani and the assessee were nothing but continuation of search proceedings already commenced in the name of husband Shri Yusuf ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
