TMI Blog2015 (5) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute between the assessee and the Revenue. Last day when the authorization of search dated 8.12.1997 was finally executed / concluded is 16.1.1998 for the purpose of section 158BE(1)(b) of the Act. Considered in the said light, the assessment order passed by the Assessing Officer on 23.2.2000 is beyond the period of limitation prescribed in section 158BE(1)(b) of the Act. As a consequence the assessment order dated 23.2.2000 is untenable in the eyes of the law and it is hereby quashed. - Decided in favour of assessee. - IT(SS) No. 20/Mum/2011 - - - Dated:- 29-5-2015 - Shri G.S. Pannu, Accountant Member And Shri Amit Shukla, Judicial Member Appellant by: Shri Rajiv Kumar Respondent by: Shri S.J. Singh ORDER G.S. Pannu, A.M. The captioned appeal preferred by the assessee is directed against the order of the Commissioner of Income Tax (Appeals) (hereinafter referred to as the CIT(A) ) dated 25.02.2011 which inturn has arisen from an order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) dated 23.02.2000, pertaining to Block Period 01.04.1987 to 08.12.1997. 2. This appeal was init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of hearing, the learned representative for the assessee submitted that in so far as the Grounds of appeal Nos. 1 and 2 are concerned, assessee does not wish to press the same. Accordingly, Grounds of appeal Nos. 1 and 2 stated above are dismissed as Not Pressed . Thus, the only issue surviving for consideration in the present proceedings is manifested by way of Ground of Appeal No.3, which seeks to challenge the assessment order passed by the Assessing Officer on the ground that it has been passed beyond the period of limitation prescribed under the Act. 5. In order to determine the aforesaid controversy, the relevant facts can be understood as follows. The appellant before us is an individual carrying on business as a share broker of the Bombay Stock Exchange through his proprietary concern, M/s. Ramkrishna Sekhsaria. In this case, a search action u/s.132 of the Act was carried out at the official and residential premises of the assessee on the basis of a warrant of authorization dated 8.12.1997. The premises covered by the search action were the following-(i) 719, Rotunda Building, B.S. Marg, Fort, Mumbai-400023 ( in short the Rotunda Building ), which is the office of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the office premises at 719, Rotunda B S Marg, Mumbai, in our presence. 9. An order, under section 132(3) of the I.T.Act, 1961 in respect of the sealed premises as mentioned above was served on Shri.Bharat Sekhsaria by the said authorized officers, 6. On even date i.e., 13.1.1998 a Prohibitory Order u/s.132 (3) of the Act was also served on assessee, Shri Bharat Sekhsaria, whereby the wooden Cabinet containing the aforesaid material was sealed. Quite clearly, sealing of the wooden Cabinet and passing of the Prohibitory Order u/s132(3) of the Act thereof was in respect of the contents, which were already inventorised. Admittedly, such contents were share certificates, transfer deeds and other papers which were duly inventorised as per Annexure 2 to the panchnama dated 13.1.1998. Subsequently, no other seizure was made from the Rotunda building and on 6.2.1998 the Prohibitory Order dated 13.1.1998 was vacated / revoked. However, on 6.2.1998 also, a panchnama was drawn-up whose relevant contents are as under : 5. In the course of the search. (a) The following were found and seized. (i) Books of accounts and documents as per annexure A ( NIL sheets). (ii) Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order u/s.158BC shall be passed within two years from the end of the month in which the last of the authorizations for search u/s.132 was executed. On the strength of the aforesaid provision, the stand of the assessee is that since no search had infact been carried out on 6.2.1998, such date could not be regarded as the date on which the last of the authorizations for search was executed and therefore the period of limitation could not be extended to 23.2.2000. On the other hand, the stand of the Revenue is that plea of the assessee was wrong since the last panchnama was drawn on 6.2.1998 and therefore the assessment order which was passed on 23.02.2000 was within the period of limitation prescribed in section 158BE(1)(b) of the Act r.w.s Explanation 2(a) thereof. As the aforesaid discussion would reveal, the pertinent dispute between the assessee and Revenue is the date of conclusion of search carried out on the basis of the warrant of authorization dated 8.12.1997. The case of the assessee is that search concluded in January, 1998 itself and no further search was conducted thereafter inasmuch as on 9.2.1998, the Prohibitory Order passed on 13.1.1998 was merely vacated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and which are seen and heard by them. Again in The Sate of Maharashtra V. Kacharasdas D. Bhalgar : (1978) 80 Bom LR 396, a panchnama was stated to be a memorandum of what happens in the presence of the panchas as seen by them and of what they hear . We have examined the meaning of the word panchnama in some detail because it is used in Explanation 2(a) to Section 158BE of the said Act although it has not been defined in the Act. A Panchnama, as we have seen is nothing but a document recording what has happened in the presence of the witnesses (panchas). A panchnama may document the search proceedings, with or without any seizure. A panchnama may also document the return of the seized articles or the removal of seals. But, the panchnama that is mentioned in Explanation 2(a) to Section 158BE is a panchnama which documents the conclusion of a search. Clearly, if a panchnama does not from the facts recorded therein, reveal that a search was at all carried out on the day to which it relates, then it would not be a panchnama relating to a search and, consequently, it would not be a panchnama of the type which finds mention in the said Explanation 2(a) to Section 158BE. This dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and inventorized at the time of drawing up of the panchnama dated 13.1.1998. Ostensibly, no further search was conducted after 13.1.1998 in the Rotunda Building, and all that was done on 6.2.1998 was that the Prohibitory Order passed u/s.132(3) on the Act on 13.1.1998 was vacated. Factually speaking, the aforesaid position is not in dispute. These circumstances shows that no search was carried out on 6.2.1998, therefore it has to be understood that the panchnama dated 6.2.1998 would not reflect the conclusion of search or execution of the last of the authorizations for search dated 8.12.1997 within the meaning of section 158BE(1) of the Act. In fact, in the panchnama dated 13.1.1998, though it is mentioned that the search has been .temporarily concluded for the day to be commenced subsequently, but the same does not make any difference because factually speaking, no further search was conducted after 13.1.1998 at the Rotunda Building therefore, it is the panchnama of 13.1.1998 which is relatable to the conclusion of search at the Rotunda Building and not the panchnama of 6.2.1998. In view of the aforesaid discussion, it has to be inferred that the panchnama of 6.2.1998 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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