TMI Blog2016 (4) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : Shri. Devendra Jain For the Respondent : Ms. Rupinder Brar O R D E R PER RAM LAL NEGI, JM These appeals pertain to assessee Shri. Jamnalal Purohit, for the block assessment period 1988-89 to 1998-99. IT(SS) No 187/M/03 and IT(SS) No.175/M/03 have been filed by the assessee and the revenue respectively against order dated 27.12,2002 passed by the CIT(A) xvii, Mumbai for the block period 1988-89 to 1998-99. For the sake of convenience, both the appeals were clubbed and heard together and are being disposed of vide this common order. IT(SS) No 187/MUM/2003 2. Brief facts of the case are that during the relevant period, the assessee was in the business of purchase/sale of milk and manufacture of milk products having vending outlets at Mumbai at C.P.Tank, Parle, Malad and Bhayander, in the name of M/s. Paliwala Dairy Farm. The assessee used to purchase milk under the name of M/s. Ghanshyam Dairy Products, from Miraj where the assessee had full-fledged processing unit, a chilling plant, cold storage and business premises. 2.1 A search and seizure action was carried out in the business premises of the assessee at 48, Nath, Madhav P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in rejecting the plea of the appellant that the assessment is barred by limitation. The same should be accepted and the assessment order should be quashed. 1.2 The Learned Commissioner of Income Tax(Appeals) ought to have appreciated the fact that the search proceedings were completed on 15/12/1997, whereas the assessment order was passed on 31/01/2000 and hence was barred by limitation u/s Block Assessment period: 1988-89 to 1998-99 1.3 The Learned Commissioner of Income Tax(Appeals) ought to have appreciated the fact that the restraint order u/s 132(3) does not amount to seizure in view of Expln.(2) to section 132(2) of the I.T.Act, 1961. 1.4 The Learned Commissioner of Income Tax(Appeals) ought to have appreciated the fact that the order u/s 132(3) is not a panchnama as referred to in section 158BE of the I.T.Act, 1961 and hence the assessment stood barred by limitation on 31/12/1999 and not on 31/01/2000. 3.1. Before us the Ld. Counsel for the assessee submitted that the block assessment order passed by the Assessing Officer u/s 158BC of the Act is invalid and bad in law being barred by the limitation under section 158BE of the Act. In support of his contention, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al pronouncements/decisions relied upon by the parties, in the light of their respective contentions. As per the facts emanating from the record, the search was contended on 15/12/1997 and panchnama was prepared on same date i.e. on 15/12/1997 vide which prohibitory orders u/s 132(3) in respect of bank account etc. were made. The prohibitory orders were lifted on 06/01/1998 by preparing another panchnama wherein it was stated that search was commenced at 1.30 PM and concluded at 2.00PM and that search was finally concluded. The Ld. CIT(A) has dismissed the plea of the assessee on the ground that the last panchnama, within the meaning of Block Assessment period: 1988-89 to 1998-99 explanation 2 to section 158BE of the Act was drawn on 6/1/98 therefore, the AO has completed the assessment within the limitation period. 5. The coordinate Bench of Mumbai Tribunal in Deputy Commissioner v. Adolf Patrick Pinto (2006) 284 ITR 207 (Mumbai) following the law laid down by the Hon ble jurisdictional High Court of Bombay in CIT vs. Mrs. Sandhya P. Naik Others (2002) 253 ITR 534(Bom), has decided the similar issue in favour of the assessee. In the said case the Hon ble court has held that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time limitation as provided under section 158 BE and the same is quashed 7. In A. Prakash Kumar Jain versus Joint Commissioner of income tax 2012, 254 CTR ,0576 the Hon ble High Court of Madras has held as under:- Merely because, more than one panchnama is drawn in the given case on authorisation, one cannot construe that the subsequent and the last of the panchnama issued as one flowing out of the search as a last of the panchnama referable to explanation 2 to section 158 BE. Once the warrant of authorisation has been issued and the premises is searched and the search party leaves the premises, there is the end of the search and what could be postponed is only seizure of the article and issuance of prohibitory order; however, limitation for the completion of the block assessment begins on the conclusion of the search and issuance of panchnama and in case of single authorisation, the moment such party leaves the premises by drawing of the panchnama noting conclusion of the search, the limitation period begins. Block Assessment period: 1988-89 to 1998-99 8. The co-ordinate Benches of ITAT, Mumbai as well as the other Benches of ITAT have held that for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with reference to the net profit percentage disclosed by the assessee on its recorded purchases in its regular books of a/CS for the AY 1991-92. 2. On the facts and in the circumstances of the case the Ld.CIT(A) erred in directing the AO to adopt the rate at 1.75% on the total purchases recorded for AYs 1991 92, 1992 93 and 1993 94. 3. On the facts and in the circumstances of the case the Ld, CIT(A) erred in estimating the increase in the milk quantity @ RS 7/-per litre. 4. On the facts and in the circumstances of the case the Ld.CIT(A) erred in holding the view that addition on account of milk cut cannot be sustained. 5. On the facts and in the circumstances of the case the Ld. that CIT(A) erred in estimating assessee s income at the rate of ₹ 10/ per litre for the increase in milk quantity for AY 1994 95 and also in holding that no addition on account of milk quantity for the other AYs is called for. 6. On the facts and in the circumstances of the case the learned CIT (A) erred in working out the total undisclosed income for the assessment years 1994 95, 1995- 96 and 1996-1997 on account of increase in milk on page 21 of the appellate order. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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