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TMI Blog2012 (3) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... e I.T. Act is bad in law, void ab initio and consequently the assessment requires to be cancelled. The order of assessment is without jurisdiction and not legally sustainable in law. The legal grounds are sub classified as under and each of the ground is without prejudice to the other. a) The Warrant of authorization being in the joint names of various persons including the appellant, the impugned assessment requires to be cancelled. b) The mandatory conditions for invoking the provisions of Section 153A did not exist and further the essential and mandatory conditions have not been complied with and consequently the assessment made is bad in law and liable to be cancelled. c) The proceedings of initiation and Legality and validity of search are not in accordance with provisions of law and consequently the question of invoking the provisions of section 153A of the Income Tax Act on the appellant does not arise and thus the impugned order passed is bad in law and liable to be cancelled. d) The Non communication of centralization of the appellant's jurisdiction by the impugned Assessing Officer, is violative of principles of equity and natural justice, as communication to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant in the aforesaid companies had already been deliberated and assessed on the appellant in such scrutiny assessments completed prior to the search, and that certain additions so made then, on appeal, were deleted by the CIT(A) and had attained finality and the department had not pursued the same on second appeal. 9. The appellant denies himself liable to be charged to interest u/s 234 B and 234 C of the LT. Act and further the levy of the same are not in accordance to law. Furthermore, the levy is also bad in law as the additions made by the Assessing Officer are extremely debatable. Further no such levy is possible after an assessment u/s 143(3) on the very same issue following the parity of the ratio of the jurisdictional High Court in the case of T.P. Indira Kumar reported in 322 ITR 454 /29 DTR 311 (Kar). 10. For the above and other grounds that may be urged at the time of hearing of the appeal the appellants prays that the appeal may be allowed and justice rendered. The appellant craves leave in relying upon the original grounds filed and the concised grounds of appeal filed on 08/07/2011 as part of the arguments in the course of hearing of the appeal." 3. The main grie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides that "Where the Director General or Director or the Chief Commissioner or Commissioner or any such Joint Director or Joint Commissioner as be empowered in this behalf by the Board, in consequence of information in his possession, has reason to believe that - (a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922 (11 of 1922), or under sub-section (1) of section 131 of this Act, or a notice under sub-section (4) of section 22 of the Indian Income-tax Act, 1922, or under sub-section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 246 A of the Income Tax Act 1961 to adjudicate on the reasons recorded by the competent authority for issue of authorisation under Section 132(1). The section 246A gives the list of the orders against which the appeal lies before the Commissioner of Income Tax (Appeals). III. In the Judgement of Ajit Jain (260 ITR 80) on which the reliance has been placed by the appellant is not of any help to the appellant. In the above case, Honourable Supreme Court affirmed that the judgement of Delhi High Court in Writ Petition No.3756 of 1997 in the case of Union of India Vs Ajit Jain which was reported in 242 ITR 302. In that case the Honourable Delhi High Court held that intimation simpliciter by the CBI that money was found in possession of the respondent which according to the CBI was undisclosed, without something more, did not constitute "information" within the meaning of Sec 132 of I T Act 1961, on the basis of which a search warrant could be issued, and the search conducted on the basis of such information and the block assessment made pursuant to such search was not valid." In the above case, the assessee challenged the issue of search warrant before the Honourable H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made. There is only condition under Section 153A that search necessarily to be initiated in the case of person in whose case notice under Section 153A has to be issued, this condition has been fulfilled in the case of appellant, hence, this argument is also not acceptable." 9. Now the assessee is in appeal. The ld. counsel for the assessee reiterated the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 is available at page No.3 of the assessee's paperbook, therefore there is no doubt to this fact that the warrant of authorization was in the joint names, but the assessment has been framed in the individual name of the assessee. On a similar issue, the Hon'ble Allahabad High Court, Lucknow Bench in the case of CIT v. Smt. Vandana Verma [2011] 330 ITR 533 (All) has held as under: " A warrant of authorization must be issued individually, if it is not issued individually, then the assessment cannot be made in an individual capacity." It has further been held - "that since the warrant of authorization had been issued in the joint names of MV and VV, who were husband and wife living together in a single premises, it was not open for the assessing authority to assess VV alone on the basis of the assets and documents seized during the course of search by invoking the provisions of Chapter XIV-B in an individual capacity." 13. Similarly, the Hon'ble jurisdictional High Court in the case of CIT v. P.J. Kumar (supra) has held that - "It is settled law that the search to be conducted should be strictly in accordance with law. If an authorization is issued in the name of two pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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