TMI Blog2013 (9) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue is general in nature which needs no adjudication. Remaining grounds raised by the revenue read as under:- 1. Whether on the facts and in the circumstances of the case, the Id. CIT(A) has erred in law and on facts in annulling the assessment made u/s 153A by holding that no search was conducted in the case of the assessee? 2. Whether on the facts and in the circumstances of the case, the Id. C1T(A) has erred in interpreting Sec. 153A of the Income Tax Act, 1961? 3. Whether on the facts and in the circumstances of the case, the id. CIT(A) has erred in ignoring the material seized during the search? 3. Briefly stated the facts giving rise to this appeal are that the appellant company is engaged in the business of real estate and is also running a hotel. Search u/s 132 of the Act was conducted on 1.6.2006 in the Vipul Group of cases by way of warrant of authorization dated 1.6.2006 at premises situated at 3rd Floor, Arcade M.G. Road Gurgaon. The AO issued notices u/s 153 of the Act on 1.2.2008 and the assessee filed return on 23.6.2008. Further, notice u/s 143(2) of the Act was also issued on 18.7.2008 and 23.7.2008 by the Assessing Officer for all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d kind consideration: 153A. Notwithstanding anything contained in section 139, section 147, section 148, section 149. section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, 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: It may be appreciated from above that for invocation of valid jurisdiction u/s. 153A. it is sine qua non that search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. However, in support of our aforementioned submission we have filed an affidavit by the principal officer dt. 20-04-2010 (Copy enclosed again). In the facts and circumstances we draw your kind attention to the law and judgment of Karnataka High. Court reported at CIT v. Wipro Finance Ltd. [2009] 176 Taxman 233; where the expression Search Initiated has been exemplified that the expression search initiated means search taken or search commenced or making beginning of the search. If this meant by search initiated it cannot be held that the only signing of authorization by the DIT to make search in the premises of assessee would amount to initiation of search. The signing of authorization would at best amount to taking of decision by the said authority to initiate search in the premises of respective assessee but not initiation of search itself. It is further being held in similar facts and circumstances at J.M. Trading Corpn. v. Asstt. CIT [2008] 20 SOT 489 (Mum.) that whether mere mentioning of name in panchnama does not lead to conclusion that a valid search was conducted against assessee - Held, yes - Whether mere search of premises owned by assessee but rented t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is prayed to kindly hold the proceedings initiated u/s. 153A as without jurisdiction and assessment altogether as invalid and illegal.' 6. From the assessment order page 7, last two lines, we observe that the Assessing Officer proceeded to make additions on the basis of documents found during the course of search from the residence of Shri Punit Beriwala. From para no. 4.4 of the impugned order at page 7, the Commissioner of Income Tax(A) observed that the name of the assessee is mentioned in the warrant of authorization dated 1-6-2006, However, the name of the assessee is not mentioned in the Panchnama executed at the time of conclusion of the search. The Commissioner of Income Tax(A) further observed that the Assessing Officer is of the view that the name of the appellant is covered in the Panchnama by using word etc. . The Commissioner of Income Tax(A) further observed that it is presumed that no books of accounts/documents or other assets of the appellant/assessee were found/seized during the search conducted at 3rd floor, Global Aracade, M.G. Road, Gurgaon. The Commissioner of Income Tax(A) also noticed that it is a matter of record that the assessee is also having off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available at the address searched upon. Mew mentioning of name in the warrant of authorisation does not lead to the conclusion that a valid search was conducted against the assessee. In the totality of circumstances, where no search has been conducted against the assessee there is no merit in the issue of notice under s.153A of the I.T. Act under which the jurisdictional area of operation is six assessment years immediately preceding the assessment year relevant to the previous year, in which search was conducted. In case, no search is conducted against a person, the period of operation to which the provisions of sec. 153A would apply, cannot he determined and the invoking of provisions of s.153A of the Act is baseless. Accordingly, it is held that the assessments made against the assessee under the provisions of s. 143(3) r.w.s. 153A of the Act are null and void and direct the Assessing Officer to cancel the same. 8. On specific query from the Bench, the DR fairly accepted that as per Panchnama (PB No. 5 to 8), the search was conducted at 3rd Floor, Global Aracade, M.G. Road, Gurgaon and the name of the assessee is not mentioned in this Panchnama. However, the DR pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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