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TMI Blog2015 (5) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... of Appeal Nos.1, 2 and 3 raised by the assessee in its original Memo of Appeal filed before the Tribunal. The operative part of the order of the Hon'ble Bombay High Court is reproduced as under :- "8. Thus, the question as formulated is answered in favour of the assessee and the impugned order of the Tribunal is set aside to the extent it rejects ground nos. 1,2 and 3 and the same are restored to the file of the Tribunal for fresh disposal. It may be pointed out that the CIT (Appeals) after having rejected the Appellant's additional grounds proceeds further to deal with the ground nos.1, 2 and 3 and rejects the same on merits. This is an additional reason that the Tribunal ought to have considered grounds 1,2, and 3 raised by the Appellant on merits which it failed to do. 9. Accordingly, impugned order dated 19.10.2012 is set aside to the extent it reject the appellant's grounds nos.1,2 and 3. On the aforesaid issue alone the appeal is restored to the Tribunal. The Tribunal is directed to hear the Appellant and pass a fresh order on ground nos.1,2 and 3 urged by the appellant as expeditiously as possible and preferably within a period of six months from today." 3. In the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing owned by assessee's mother where the assessee was residing. Search operations were carried out at the Rotunda Building on 9.12.1997 and 13.1.1998. As per the panchnama drawn up on 13.1.1998 in the course of search, certain shares / stocks belonging to the assessee were found but not seized. The said share certificates, transfer deeds and other papers kept in a Wooden Cabinet in the Rotunda Building were inventoried and listed as Annexure-2 to the panchnama dated 13.01.1998. Paras 5, 8 and 9 of the panchnama are relevant, which read 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) Bullion i.e. gold silver etc as per Annexure "B" (NIL sheets). (iii) Cash as per annexure - "C" ( NIL sheets). (iv) Jewellery, ornaments etc. which have been inventorised separately for each place from where recovered as per annexure - "J" ( NIL sheets). (v) Silver articles, and silverware as per annexure - "S" ( NIL sheets). (vi) Other valuables, lockers key F.Ds. etc as per annexure "O" ( NIL sheets). (b) The following were found but not seized: (i) Book of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per annexure - "S" ( NIL sheets). (vi) Other valuables, lockers keys F.Ds. etc as per annexure "O" ( NIL sheets). (b) The following were found but not seized:__N.A.__ (i) Book of accounts and documents as per Annexure. Marks of identification were placed on them and the specimen of the marks and the pages where these have been placed are shown in the inventory prepared viz. Annexure (ii) The other valueable articles (including money) as per Annexure. (Separate inventories of jewellery, ornaments, silverware etc. were prepared for items found in different places or claimed to be belong to different persons) ................................................................... .............................................................................. 8. The search commenced on 06.02.1998 at 11:00 a.m. The proceedings were closed on 06.02.1998 at 11:35 a.m. as finally concluded for the day to be commenced subsequently for which purpose seals were place on the entire place in our presence." 7. In terms of the said panchnama, apart from other things it has been put that the proceedings were closed on 6.2.1998 at 11.35 am as finally concluded. 8. In the above backgr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panchnama" used in clause (a) of Explanation 2 below section 158 BE(1) of the Act. On the said subject, the learned representative for the assessee relied upon the judgment of the Hon'ble Delhi High Court, in the case of CIT Vs. Shri S. Katyal (2009) 308 ITR 168(Del) to justify that panchnama dated 6.2.1998 was not a panchnama relevant to decide the conclusion of search for the purposes of section 158BE(1) of the Act. In the case before the Hon'ble Delhi High Court, the issue related to the limitation for framing a block assessment in terms of section 158BE of the Act. The Revenue sought to justify the period of limitation on the basis of a panchnama which was said to be the 'last panchnama' which concluded the search. The assessee assailed the said position on the ground that such 'last panchnama' did not conclude the search, as no search was carried out on the relevant day, and, rather only the Restraint order passed on an earlier date u/s.132(3) of the Act was merely revoked. In this background, the Hon'ble High Court considered the relevant legal position and held as under :- "These provisions demonstrate that a search and seizure under the said Act has to be carried ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date. Nor was anything "found" on that date. In fact, no search was conducted. The jewellery that was put in the cash box of the almirah had already been searched, found, inventoried and valued by the DVO on 17.11.2000 itself. Nothing remained to be searched thereafter. And, in fact, no further search was conducted after 17.11.2000. Obviously , nothing else could be found. All that was done on 3.1.2001, in the presence of the witnesses (panchas), was that the seals were removed from the cash box and the almirah and the keys were handed back o the assessee. Essentially, the revocation of the restraint order was given effect to. This is exactly what the Tribunal found as a fact and meant when it concluded that the panchnama dated 3.1.2001 was merely a release order and could not extend the period of limitation. 10. The aforesaid discussion by the Hon. Delhi High Court is a pointer that the panchnama of the type mentioned in the Explanation 2(a) to section 158 BE would not include within its fold a panchnama which merely revokes an earlier placed restraint order u/s.132(3) of the Act, especially when on such date, no search was carried out. The aforesaid legal position has been furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck assessment order u/s. 158BC of the Act in the present case cannot be computed by considering the panchnama of 6.2.1998 as execution of the last of the authorizations for search initiated by the authorization u/s 132 dated 8.12.1997. 12. Apart from the aforesaid proceedings, search operations were also carried out at two other premises i.e. at Sonawala Building and at Krishna Niwas. The search operations at these premises came to an end on 16.1.1998 and 8.1.1998 respectively as is revealed by the Panchnama's on record. In any case, on these aspects, there is no dispute between the assessee and the Revenue. Therefore, it has to be held that the 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. Thus, assessee succeeds in its Ground of appeal No. 3. 13. Resultantly, assessee succeed in the ..... 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