TMI Blog2014 (2) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax Appeal No. - 21 of 2004 - - - Dated:- 9-12-2013 - Hon'ble Uma Nath Singh And Hon'ble Ritu Raj Awasthi,JJ. For the Appellant : D. D. Chopra For the Respondent : Jaspreet Singh ORDER We have heard learned counsel for parties and considered the arguments as well as pleadings. On 28.05.1995, Railway Police recovered an amount of Rs.4,04,500/- from the possession of assessee while he was traveling in a train. That information was passed on to the Income Tax Department on 28.06.1995 itself. Next day on 29.06.1995, the Railway Police sent another intimation to the Income Tax Department along with a copy of FIR and statement of Shri P.N. Sanyal. In the statement, the assessee had submitted that he was acting as a commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2003 passed in ITA No.1701/Alld./96 [P.N. Sanyal vs. The ACIT Investigation Circle, Lucknow], the Department has filed this appeal through Assistant Commissioner of Income Tax with following questions of law: "(a) Whether under the facts and in the circumstances of the case, the ITAT was justified in law in substituting its belief in place of belief formed by the Director of Income Tax (Investigation) for the purpose of search warrant u/s 132 A and thereby holding the search invalid and quashing the assessment order. (b) Whether seizure of cash by the Railway Police after the respondent failed to furnish any satisfactory reply leading to form opinion that the seized money was unaccounted was not direct and relevant material before D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers Bench of Income Tax Appellate Tribunal, Delhi, in Promain Ltd. v. Deputy Commissioner of Income Tax reported in (2006) 281 ITR (AT) 107 (Del.) (SB) that exercise of power under Section 132 A of the Income Tax Act is an administrative power and not a quasi-judicial power, therefore, it would not fall within the purview of judicial review by the Income Tax Appellate Tribunal. The same view has been upheld by a coordinate Bench of this Court in the case of Commissioner of Income Tax v. Dr. A. K. Bansal (Individual) reported in [2013] 355 ITR 513 (All.). The coordinate Bench while dealing with this aspect has held in paragraphs 22, 23, 24 and 25 as under: "22. We agree with the reasons given by the Five-Members Bench of the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the assessment order cannot question the validity of the search. 23. The Five-Member Bench of the Tribunal held that the Tribunal cannot adjudicate upon the action of the Director of Investigation/Commissioner of Income Tax under Section 132 (1). It may look into the point, if it was raised before the Assessing Officer regarding the later stages, namely issuance of notice under Section 158BC and preparation of panchnama to satisfy itself that the search was initiated and carried out in case of the person on whom the notice was served. If the Assessing Officer does not satisfy himself in this regard, then the assessee has the right to object to the validity of the assessment in appeal on the ground that no search was initiated/condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax as well as the decisions of Punjab Haryana High Court, Madhya Pradesh High Court, Rajasthan High Court, and Delhi High Court which have on more than one occasion held that in hearing an appeal against the order of the assessment, the Tribunal cannot go into the question of validity or otherwise of any decisions for conducting search and seizure. This decision can be challenged in an independent proceedings where the question of validity of order may be gone into. A similar view has also been taken by a Division Bench of Delhi High Court in the case of M.B. Lal v. Commissioner of Income Tax reported in [(2005) 279 ITR 298 (Delhi)]. The Court has discussed the power under Section 132 of the Income Tax Act as under: "The T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue that directions regarding completion of the assessment proceedings expeditiously were issued by this court to the Assessing Officer in the following words: "In the notices dated 22.01.2002 the respondents have asked the petitioners to prepare a true and correct return of the total income including the undisclosed income, under the provisions of section 158BC of the Income-tax Act, 1961. Mr. Sharma, the learned senior counsel appearing for the petitioners submitted that the relevant information has already been submitted. In case some information remains to be submitted, the same will be submitted within two weeks from today. The concerned authorities are directed to carry out the assessment proceedings as expeditiously as possible. No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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