TMI Blog2016 (12) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... the notices under section 153A of the Act dated 05.10.2009 issued by him; thereby rendering them invalid and consequently the orders of assessment under section 153A of the Act for assessment years 2006-07 and 2007-08 subsequent to the issue of those notices under section 153A of the Act could not have been passed and the same are also held to be void abnitio and accordingly cancelled. - Decided in favour of assessee - ITA No. 4929/Mum/2013, ITA No. 1455/Mum/2012 - - - Dated:- 14-12-2016 - Shri Jason P. Boaz, Accountant Member And Shri Sandeep Gosain , Judicial Member Appellant by: Shri Piyush Chhajed Respondent by: Ms. S. Padmaja ORDER Per Jason P. Boaz, A. M. These appeals by the assessee are directed against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing officer erred in making an addition of ₹ 58,846/- as undisclosed income. Without appreciating that the profit earned on Mutual Funds were long term and hence exempt from tax. 2.2.2 By letter dated 17.08.2015, the assessee submits that ground No. 1 of the revised grounds (supra) has been raised for the first time and has prayed for admission of the same for consideration, since it is a legal ground and goes to the very root of the jurisdictional issue therein. The assessee s petition for admission of above ground [i.e. Ground No. 1 of revised grounds (supra)] has been duly considered. We are of the view that it is in the interest of equity and justice that this ground be admitted for hearing, being a legal ground which goes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption of assessment jurisdiction by issue of notice under section 153A of the Act was invalid and therefore the consequent orders of assessment for assessment years 2006-07 and 2007-08 passed under section 143(3) r.w.s. 153A of the Act are void ab-initio. Further, inspite of directions by the Bench, Revenue was not able to produce a copy of the warrant of authorisation for search under section 132 of the Act in the assessee s case to establish that the assessee was searched on 24.02.2009. In fact the letter of the AO dated 30.11.2016 clearly acknowledges the inability of the Department to produce the warrant of authorization for search and only confirms that a survey under section 133A of the Act was conducted at the assessee s premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nay Group of cases; including the assessee in the case on hand. These statements of the AO were contradicted by the AO himself later in the order of assessment when he mentions that during the survey under section 133A of the Act at the business premises of the assessee on 24.02.2009, the assessee had deposed on oath in survey proceedings. It is the contention of the assessee that no search proceedings under section 132 of the Act were carried out in his case on 24.02.2009 and therefore the AO had no legal sanction or jurisdiction to issue notice under section 153A of the Act in his case and pass orders of assessment under section 153A of the Act subsequent thereto; which were invalid and required to be quashed or cancelled. 3.3.2 In ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such search was conducted or requisition is made. In our considered view, in the light of the factual matrix of the case as discussed from para 3.1 to 3.3.2, we record the finding that there was no warrant of authorisation issued to search the assessee s premises on 24.02.2009 and Revenue was unable to produce the same, if any, to controvert our finding. This was specifically required in the light of the contradictory statements made by the AO in the order of assessment which led to the confusion of whether the assessee was subjected to search or not. In the absence of any warrant of authorisation to search the assessee s premises under section 132 of the Act, on 24.02.2009, the AO had no jurisdiction to issue the notices under section 153 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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