TMI Blog2023 (2) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... i, relating to Assessment Years 2008-09, 2009-10 2010-11, raising various grounds. 2. First of all we proceed to decide the legal ground of the assessee which reads as follows:- 2. That on the facts and in the circumstances of the case Ld. CIT(A) has erred in law as much as in fact in holding that the impugned assessment framed u/s 153A r.w.s 143(3) of the Act was fully justified. The conclusion can be found only in Para 11 of the impugned order for which no reason whatsoever has been given. He has failed to appreciate that no such assessment could be framed u/s 153A of the Act as there was complete absence of incriminating material belonging to the Appellant and the proceedings were not abated. Thus, the order passed by CIT(A) on this issue should be reversed and this ground of appeal of the assessee should be allowed. 3. Apropos said ground of appeal the ld. Assessee s representative (AR) submitted that there was no search in the business premises of the assessee and, in fact, there was a survey operation on the assessee u/s 133A of the Income-tax Act, 1961 (for short, the Act ). Therefore, the assessment orders passed u/s 153A r.w.s. 143(3) of the Act are void ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onducted u/s 133A of the Act on the assessee on 17.08.2011 and statement of Shri Kailash J Aeren was recorded by the survey team and Annexure A-1 to Annexure A-5 were also found and impounded u/s 133A(3)(ia) of the Act on conclusion of survey on 18.08.2011 which clearly reveals that there was a survey operation only on the premises of the assessee situated at 1411, ChiranjivI Tower, 43, Nehru Place, New Delhi and no search and seizure operation was conducted on the assessee. Therefore, the assessment order passed by the AO u/s 153A r.w.s. 143(3) of the Act dated 30.03.2014 is void ab initio and bad in law as the AO did not assume valid jurisdiction to frame such assessment without any search and seizure operation on the assessee. 6. The ld. Counsel submitted that on the very same date i.e., 17.08.2011 a search and seizure operation was conducted on AEZ Infratech Pvt.. Ltd., and Aeren Buildwell Pvt. Ltd., at their addresses 301-303, Bakshi House, 40-41, Nehru Place, New Delhi, and this address is mentioned in Form No.35, warrant of authorization, panchnama and assessment order framed u/s 153A r.w.s. 143(3) of the Act. The ld. Counsel also explained that from the copy of the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33A(3)(ia) of the Act dated 17.08.2011 and inventory of books of account/documents found and impounded during the survey operation dated 17.08.2011 available at pages 273-275, copy of statement of Shri Kailash Jai Aeren at pages 276-290, impounding order and inventory thereto dated 18.08.2011 u/s 133A(3)(ia) of the Act clearly reveals that the survey operation was commenced on 17.08.2011 and concluded on 18.08.2011 by impounding certain documents, hard discs, etc. and, during the said survey operation, statement of Shri Kailash Jai Aeren, Vice Chairman and Managing Director of the assessee company was recorded, therefore, it is amply clear that there was only a survey operation on the assessee. Coincidentally on the very same date search operation was conducted on other entities namely M/s AEZ Infratech Pvt. Ltd. and Aeren Buildwell Pvt. Ltd., and there was no search and seizure operation u/s 132(4) of the Act on the assessee. In absence of any search and seizure operation, the AO did not assume valid jurisdiction to issue notice u/s 153A of the Act and to frame assessment order u/s 153A r.w.s. 143(3) of the Act. Therefore, the impugned assessment order as well as the first appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, the address mentioned in the said documents was not belonging to the assessee company and, during the course of search and seizure operation, no office bearer or staff member of the assessee company participated in the said operation which was conducted on differently located place which was not the address of the present assessee company. 11. The ld. Counsel of the assessee has placed vehement reliance on the following orders of the coordinate Benches of the Tribunal: (i) Regency Mahavir Properties vs. ACIT, ITA No.682/Mum/2016, order dated 04.01.2018; (ii) Dr. Mansukh Kanjibhai Shah vs. ACIT, ITA No.2878/Ahd/2007, order dated 21.05.2010; (iii) Lords Distilleries vs. DCIT, MANU/ID/1256/2018. 12. In the case of Regency Mahavir Properties (supra), the coordinate Bench of the Tribunal, in the identical facts and circumstances, held as follows:- 6. The learned AR before us submitted that the assessee has taken this ground before the CIT(A) but the CIT(A) dismissed the ground mentioning that this ground does not emanate from the order of the Assessing Officer as the assessee has not taken this issue before the Assessing Officer. It was contended that this ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the case law relied on by the assessee, reliance was placed on the decision of the CIT(A) in which the CIT(A) has duly distinguished these case laws. 7. We have heard the rival contentions and have carefully considered the same along with the orders of the authorities below. The question before us in ground no.1 taken by the assessee is whether in the facts and circumstances of the case, in the absence of search being conducted at the place of the business of the assessee, any assessment can be made by issuing notice u/s. 153A of the Act. It is not denied that the search warrant on the basis of which the search has been conducted at the premises 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar-2, contained the name of the assessee but this premises where the search has been conducted does not belong to the assessee firm nor the assessee firm was carrying on any business from the said place. The premises where the search was conducted relate to Konark Project Ltd., in which one of the assessee's partner is interested. But this is not the address of the assessee firm. The assessee's firm is constituted on 26.08.2005 vide partnership dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad, Pune. Not only this, we noted that although in the assessment order the Assessing Officer has mentioned the address of the assessee to be at 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar-2, but in the notice of demand issued u/s. 156 the address has been generated on line and mentioned as 5th floor, A3, 5th Avenue, Dhole Patil Road, Pune. All these documents prove that the address of the assessee is not 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar-2. We also noted that the Panchnama has been drawn showing the search being conducted at the premises of the assessee. In our view, the Assessing Officer assumed the jurisdiction to issue notice u/s. 153A and made assessment in consequence of search action being taken u/s. 132 of the Income tax Act. Before deciding whether the Assessing Officer has validly assumed the jurisdiction u/s. 153A, it is necessary to analyze the provisions of section 132(1) as well as 153A. The provisions of section 153A, 153B and 132(1) are reproduced as under: 153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section-15-1 and section 153, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or Additional Director or Additional Commissioner or Joint Director or Joint Commissioner 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 sub-section (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 (c) any person is in possession of any money, bullion, j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness. No incriminating material relating to the assessee was found in the premises where the search was carried out. The search was concluded but no panchnama was drawn in the name of the assessee. Therefore, the conditions as stipulated for assuming the jurisdiction u/s. 153A, in our view, have not been satisfied. We, do not agree with the CIT(A) that merely mentioning the address of the premises where the search has been conduction in the assessment order will validate the action of the Assessing Officer that the assessee was carrying on the business from the same premises. The address mentioned in the notice issued u/s. 143(2) and the demand notice generated on line as well as the PAN/TIN, copies of which were filed before us, clearly prove that 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar-2. , where the search was conducted is not the business address of the assessee. In view of these facts, we are of the opinion that the conditions stipulated u/s. 153A, for the issue of notice, are not satisfied. Until and unless the Assessing Officer assumes the valid jurisdiction u/s. 153A the assessment made in consequence of the notice issued u/s. 153A, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us. 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. 14. In view of the foregoing discussion, we are inclined to hold that there was a search operation u/s 133A of the Act on the assessee which was started on 17.08.2011 and concluded on 18.08.2011. During the said survey operation, statement of the Vice President and Managing Director of the company Shri Kailash Jai Aeren was recorded and documents were also impounded by the survey team. From the copies of the warrant of authorization u/s 132 of the Act dated 16.08.2011 and panchnama drawn on the conclusion of search and seizure operation on 18.08.2011, we note that though the name of the assessee has been mentioned along with two other entities, but, the address mentioned in the said warrant of authorization and panchnama does not belong to the assessee and, neither any officer bearer or staff member participated in the said search and seizure operation which was concluded on 18.08.2011. 15. Therefore, as per the scheme of the Act and provisions of section 153A of the Act, the AO assumes valid jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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