TMI Blog2013 (3) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/Agr./2012 (Sh. Pradeep Shivhare) : 2. The departmental appeals are filed on the following ground common in all the appeals : Whether on the facts and in the circumstances of the case, the Ld. CIT(A) was justified in holding the assessment order as invalid particularly in view of the fact that in the search warrant the name of proprietary concern of the assessee was mentioned. 3. The brief facts of the case are that a search operation u/s 132 of the I.T. Act, 1961 has been conducted on 12.05.2008 at the residential premises of Sh. Chironjilal Shivhare, Prop. M/s. C.P. Industries, Gwalior alongwith his family members. The assessee is the son of Sh. Chironjilal Shivhare has business interests in manufacturing and trading of edible oil besides liquor property business. As per the A.O. the main concerns owned and controlled by this group are as under:- (i) M/s. C.P. Industries, 15A, Pinto Park, Maharajpura, Gwalior Prop. Shri Chironjilal Shivhare. (ii) M/s. Asha Oil Industries, Industrial Area, Malanpur Prop. Shri Pradeep Shivhare. (iii) M/s. Naveen Wine Shop, Station Road, Gwalior Prop. Shri Naveen Shivhare. (iv) M/s. Naveen Oil Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or A.O. during the course of appeal proceedings, A.O. has submitted that the copy of search warrant has neither been handed over to him nor is in his possession. Finally, copy of search warrant, issued in Form No. 45, as obtained from O/o. Jt. Director of Income Tax (Inv.), Bhopal, after prolonged deliberations, has been seen placed on record. The same has also been shown to the A.O. alongwith appellant s submissions. From its perusal, it is seen that warrant of authorization u/s. 132 of the I.T. Act r/w rule 112(1) of the I.T. Rules, 1962 has been issued for premises viz. House No. B-32, R.P. Colony, Tansen Road, Gwalior in the following names:- (i) Sh. Chironji Lal Shivhare, (ii) Ash Devi, (iii) Praveen Kumar, (iv) Pramod Kumar (v) Naveen Kumar (vi) Sheetal Devi (vii) Manoj (viii) Rajendra (ix) Veena Devi (x) Sanjay (xi) Haribabu (xii) Laxmi devi (xiii) Meenu (xiv) Sangeeta (xv) C.P. Industries (xvi) Asha Oil Industries (xvii) Shivhare Sons (xviii) Hazarilal Sandeep Kumar (xix) Mahalaxmi Trading Co. Similar is the case with joint panchnama dtd. 12.05.2008 prepared in above mentioned names by the authorized officer. Thus, the name of the appellant is not found ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drastic consequences and, therefore, have well guarded powers and necessary safeguards contained as per provisions of Sec. 132. A.O. has issued notices u/s 153A for the six years under consideration in pursuance of search warrant which does not mention the name of the appellant. Section 153A provides that in case a person against whom search is initiated u/s 132A of the Act then notwithstanding anything contained in sections 139, 147, 148, 149, 151 153 of the Income Tax Act, the assessing Officer shall issue a notice to such person requiring him to furnish returns of income in respect of six asstt. years preceding to the asstt. year relevant to the previous year in which search was conducted or requisition made. Thus, the prerequisite of section 153A is that assessment under this section can be made only in a case of a person where a search is initiated under section 132 or books of account or other documents or any assets are requisitioned under section 132A after 31.05.2003. As the present case is not a case of requisition as described in section 132A, therefore, the prerequisite condition for application of section 153A is that assessment under this section can be made agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being similar to appellant s case, assessment orders passed u/s 153A, without there being search warrant for all the 6 years under appeal in the appellant s name, are held to be invalid. This ground of appeal is, therefore, allowed. 5. Since assessment orders have been held to be invalid, merits of the additions made by the A.O. are not adjudicated hereupon. 6. In the result, appeals for all six years are allowed. 4. The ld. DR relied upon the orders of the AO and submitted that M/s. Asha Oil Industries belongs to the assessee and warrants have been issued in the name of the firm. Therefore, the order of the ld. CIT(A) cannot be sustained in law. He has submitted that merely because residential address is given in the warrants is no ground to quash the proceedings against the assessee. He has relied upon the decision of Hon ble Delhi High Court in the case of CIT vs. Promain Ltd., 22 Taxmann.com 268, in which the assessee contended before the Tribunal that warrant of authorization did not include and mention name of the assessee and, therefore, block assessment proceedings u/s. 158BC were invalid and illegal. The Tribunal held that name of the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of warrant of authorization which was issued in the joint names of the assessee and her husband; they can only be assessed jointly as an AOP or BOI . (iii). Order of ITAT Ahmedabad Bench in the case of Dr. Mansukh Kanjibhai Shah vs. ACIT, 129 ITD 376, in which it was held Warrant of authorization being issued in the name of the trust and assessee being managing trustee of the trust, but no search operation was conducted in the premises of the assessee and in the warrant of authorization, the address of the place to be searched is not the address of the assessee individual, no Panchnama is also drawn in pursuance with the warrant of authorization in the case of the assessee, no documents were seized or impounded as such during the course of search from the assessee, the AO was not justified in initiating proceedings or assuming valid jurisdiction under s. 153A against the assessee. He has also submitted that the conditions of section 153C have not been satisfied in this case. Therefore, the proceedings u/s. 153A and assessment orders passed under the same provision cannot be converted into the proceedings u/s. 153C of the IT Act. 6. We have considered the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 of the Act provides 132. (1) Where the Director General or Director] or the [Chief Commissioner or Commissioner] [or any such [Joint Director] or [Joint Commissioner] as may be empowered in this behalf by the Board], in consequence of information in his possession, has reason to believe that- (a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income tax Act, 1922 (11 of 1922), or under sub-section (1) of section 131 of this Act, or a notice under sub-section (4) of section 22 of the Indian Income tax Act, 1922, or under subsection (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, or (hereinafter in this section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorised officer shall make a note or inventory of such stock-in-trade of the business;] (iv) place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom; (v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing : [Provided that where any building, place, vessel, vehicle or aircraft referred to in clause (i) is within the area of jurisdiction of any 87 [Chief Commissioner or Commissioner], but such [Chief Commissioner or Commissioner] has no jurisdiction over the person referred to in clause (a) or clause (b) or clause (c), then, notwithstanding anything contained in section [120], it shall be competent for him to exercise the powers under this sub-section in all cases where he has reason to believe that any delay in getting the authorisation from the [Chief Commissioner or Commissioner] having jurisdiction over such person may be prejudicial to the interests of the revenue :] [Provided further that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this subsection. [ Explanation. For the removal of doubts, it is hereby declared that serving of an order as aforesaid under this sub-section shall not be deemed to be seizure of such books of account, other documents, money, bullion, jewellery or other valuable article or thing under clause (iii) of sub-section (1).] (4) The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act. [ Explanation. For the removal of doubts, it is hereby declared that the examination of any person under this sub-section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any other person empowered by him in this behalf, at such place and time as the authorised officer may appoint in this behalf. [(9A) Where the authorised officer has no jurisdiction over the person referred to in clause (a) or clause (b) or clause (c) of sub-section (1), the books of account or other documents, or any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in sections 132A and 132B referred to as the assets) seized under that sub-section shall be handed over by the authorised officer to the Assessing Officer having jurisdiction over such person within a period of sixty days from the date on which the last of the authorisations for search was executed and thereupon the powers exercisable by the authorised officer under sub-section (8) or sub-section (9) shall be exercisable by such Assessing Officer.] (10) If a person legally entitled to the books of account or other documents seized under sub-section (1) [or sub-section (1A)] objects for any reason to the approval given by the [Chief Commissioner, Commissioner, Director General or Director] under sub-section (8), he may make an application to the Board stating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h provides that where after 30th June, 1995, a search is initiated u/s 132 or books accounts etc. are requisitioned u/s 132A, the AO shall proceed to assess undisclosed income in accordance with provisions of Chapter XIV-B for making assessment for block period but in the block assessments, the question of assessing an undisclosed income in relation to any AY was restricted to the incriminating material on undisclosed assets discovered during the course of search and seizure or in the post search inquiry the material was relatable to such evidence discovered in search. The income assessed in the regular assessments was not to be considered in the block assessments. However, in the present provisions u/s 153A, there is no such provision provided in the Act. Once warrant of authorization is issued and the search is conducted and panchnama is drawn, the assessments for all the seven years including the current year have to be completed u/s 153A, 153B and 153C. Even the assessments which are completed before the date of search shall get reopened and those assessments where the proceedings are pending at the time of search shall abate. The AO, therefore, shall assess or reassess such in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e article or thing are kept, break open the lock of any door, etc., search any person who is about to go from the above premises, require any person to account for the books of accounts or documents, seize any such books of accounts or documents, money, bullion, jewellery, etc. or things found as a result of such search and may place mark of identification on any books of accounts or other documents or take copy thereof and to prepare inventory of the same. The purpose of section 132 for issue of warrant of authorization is to unearth, detect and to take possession of the unaccounted/undisclosed income or property. The mere issue of warrant of authorization without there being search of the premises mentioned in the warrant of authorization would be meaningless and would not serve the purpose of section 132 of the Act. It may be illustrated by taking an example that if warrant of authorization under section 132 is issued in the name of A after 31.5.2003 but his premises is not searched for the purpose of executing the warrant of authorization and the warrant of authorization is kept unexecuted, the question arises whether the Assessing Officer still should proceed under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n requisitioned have been delivered to the requisitioning authority. The provisions of section XIV-B of the Act would come into play only when the books of accounts or other documents or assets are actually received by the Assessing Officer pursuant to the requisition made under section 132A. It was held - Held, that no search under section 132 had been conducted by the Income-tax Department. The search, if any, was conducted on June 7/8 of 2001 by the Central Excise Department. The Income-tax Department had sent a requisition on March 27, 2002 under section 132A of the Act requisitioning the books of accounts and other documents seized by the Central Excise Department. The record of the proceeding dated April 18, 2002 showed that the requisition was not fully executed as all the books of account and other documents had not been delivered to the requisitioning authority. The proceedings initiated under section 148 were valid. However in the proceedings for reassessment under section 148 of the Act, material or evidence relatable to the documents for which the requisition had been sent under section 132A could not be taken into consideration. The learned Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and explained that the amount seized from the bank accounts of the Trust did not belong to him because the same belong to the Trust only. Except the statement recorded on oath during the course of survey, there is no other material or evidence available on record to prove that the money deposited in the bank account of the Trust belong to the assessee in his individual capacity. It is well settled that admissions are not conclusive proof of matter. They may be shown to be untrue or have been made under mistake of facts or law. Circumstances have to be seen under which same are made. It can be withdrawn unless it is estoppels and conclusive. Hon'ble Punjab Haryana High Court in the case of Kishanlal Shivchand 88 ITR 293 held It is an established principle of law that a party is entitled to show and prove that an admission made by him was in fact not correct and true. Hon'ble Supreme Court of India in the case of Pullangode Rubber Product Co. Ltd. 91 ITR 18 held that assessee should be given opportunity to show that admission is incorrect or does not show correct state of facts . Hon'ble Madras High Court in the case of S. Khaderkhan Son (supra) held section 133A d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars from the facts and circumstances of the case that name of the assessee was added in the warrant of authorization and in the Panchnama being the assessee Managing Trustee of the Trust. Thus, assessee has no individual liability in the aforesaid case. We may also note here that learned Departmental Representative relied upon decision of Allahabad High Court in the case of Raghuraj Pratap Singh and others (supra) which was delivered on 14-07-2006. However, learned Counsel for the assessee relied upon another decision of Hon'ble Allahabad High Court in the case of CIT vs Smt. Vandana Verma (supra) which was delivered on 09-10-2009. The latter decision is binding for consideration. Moreover, the latter decision in the case of Smt. Vandana Verma (supra) is directly on the point in issue because when the warrant is issued in joint names in the case of the Trust and the assessee, then as per the above decision the assessments could not have been framed in the individual capacity/status of the assessee which is done in the present case. The proceedings u/s 153A of the IT Act against the assessee in his individual capacity/status are, therefore, clearly invalid and bad in law on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussions, we do not find these to be the fit cases for initiating the proceedings u/s 153A of the IT Act against the assessee in his individual status. We accordingly hold that the proceedings u/s153A of the IT Act are invalid and bad in law, resultantly, the orders of the authorities below are set aside and quashed. 10. As a result, all the appeals of the assessee in ITA No.2878, 2879 and 2880/Ahd/2007 are allowed. 6.1 The above order of ITAT Ahmedabad Bench has been authored by one of us (JM). All relevant provisions have been considered and considering the provisions relevant to search and seizure u/s. 153A, it was held that not only the warrant of authorization is to be issued in the name of assessee, but search shall have to be necessarily conducted or in the case of requisition u/s. 132A, the requisition has to be made actually. In this case, warrant of authorization was issued in the name of the trust and the assessee. Even if it was issued in joint names, but it appeared from the facts and circumstances of the case that the name of assessee was added in the warrant of authorization and in the Panchnama, being the assessee managing trustee of the trust. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. The decision in the case of CIT vs. Promain Ltd. (supra) is clearly distinguishable on facts because no warrant of authorization was found to have been issued in the name of assessee and no search was conducted against the assessee in this case. No contrary material is produced before us by the ld. DR to dispute the finding of fact recorded by the ld. CIT(A). The decisions cited by the ld. DR are clearly distinguishable on facts, as the issue before us in all the appeals are different. It is also well settled law that the conditions for invoking the jurisdiction u/s. 153A and 153C are altogether different. Therefore, the ld. CIT(A) was also justified in holding that since the conditions of section 153C are also not satisfied in the case of assessee, therefore, the proceedings u/s. 153A cannot be converted into proceedings u/s. 153C of the IT Act. The ld. CIT(A) on proper appreciation of facts and material on record rightly decided the issue in favour of assessee. We, therefore, do not find any infirmity in the order of the ld. CIT(A). In the result, the departmental appeals fail and are accordingly dismissed. ITA Nos. 199/Agr./2012 to 204/Agr./2012 (Smt. Poonam S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court in the case of Pooran Mal vs. Director of Inspection (Investigation) Ors., 93 ITR 505 held that even if search was held to be illegal u/s. 132 of the IT Act, the seized documents can be used in law for assessments. Hon ble Supreme Court in the case of Kapurchand Shrimal vs. CIT, 131 ITR 451 held as under : When the Tribunal holds that such an assessment is liable to be set aside, the duty of the Tribunal does not end with making a declaration that the assessment is illegal. The proper order to be passed in such a case would be to set aside the assessment and to direct the ITO to make a fresh assessment in accordance with the procedure prescribed by law. It would not be correct merely to uphold the assessment and direct the ITO to make appropriate modifications.. It is well known that an appellate authority has the jurisdiction as well as the duty to correct all errors in the proceedings under appeal and to issue, if necessary, appropriate directions to the authority against whose decision the appeal is preferred to dispose of the whole or any part of the matter afresh, unless forbidden from doing so by statute. The ld. DR during the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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