TMI Blog2006 (5) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment was required to be concluded with one year from the end of the month in which last of the authorizations were executed. Meaning thereby that as per the provision of section 158BE the assessment was required to be completed by 31-12-1997. Hence the assessment order passed u/s 158BC on 23-1-1998 was barred by time limitation and same is quashed. Having quashed the assessment being barred by time limitation, on the basis of the one of the contentions raised. We do not see any need to go into the other issues raised by both the parties as same will only be an academic exercise. We also see no reason to go into the merits of the case which have been raised in other grounds of the appeal as assessment has been quashed on the legal issue. In the result, appeal of the assessee is allowed. - HON'BLE SALIL KAPOOR, JUDICIAL MEMBER AND C.D. RAO, MEMBER (A) For the Appellant : Hiro Rai For the Respondent : Girish Dave ORDER Salil Kapoor, Judicial Member. 1. This appeal filed by the assessee is directed against assessment order passed under section 158BC read with section 144 dated 23-1-1998. The first ground of the assessee is that the block assessment order was passed beyond t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the jewellery. 6. On 30-1-1997 the search party again visited the residence-cum-office of the assessee and lifted the P.O. and released jewellery. Statement of the assessee was recorded, in which he stated that he has produced the purchase bills of jewellery of Rs. 1,50,000/- and the balance jewellery is gifts from friends and relatives and fans on various occasions and some of the jewellery belongs to his late mother. However, he requested the search party not to seize the jewellery and voluntarily offered Rs. 4 lakhs as income on account of jewellery over and above his earlier offer of Rs. 20 lakhs. The copy of the statement are at page 45 of the DR's paper book. Panchanama was drawn on 30-1-1997 and it was mentioned that the search was finally concluded. Copy of the said Panchanama is at pages 9 and 10 of the paper book of ld. DR. 7. The assessment has been completed vide order dated 23-1-1998. The main plea of the assessee is that the time limitation for the purpose of section 158BE starts from 23-12-1996 and the block assessment order could have been passed on or before 31-12-1997 as per the provisions of section 158BE(1)(a) i.e. within one year from the end of the month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 23-12-1996 when the jewellery was listed and valued. The search was complete on 23-12-1996 as on 30-1-1997 only P.O. was lifted and jewellery was released. No search proceeding were undertaken as on 31-1-1997. For this proposition he mainly relied on the following case law:- (1) Dy. CIT v. Adolf Patric Pinto [IT (55) Appeal No. 215 (Mum.) of 2001] (ii) Smt. Neena Wadhwa v. Dy. CIT [2003] 128 Taxman 149 (Delhi) (Mag.) (iii) M. Sivaramakrishnaiah Co. v. Asstt. CIT [2005] 93 TTJ (Visakhapatnam) 1035 9.4 The fourth argument is that as per section 158BE(1) the assessment order could be passed within one year from the end of the month in which the last of the authorization for search was executed. In this case the last of the authorizations was dated 23-12-1996 and the said authorization was executed on the same day at the Grindlays Bank and it was stated in the panchanama prepared that the search was finally concluded. He further stated that the Explanation 2 of section 158BE also relates to the authorization referred in sub-section (1). There were three authorization issued in the case of the assessee. The first authorizations was issued on 17-12-1996 in respect of the residence-cum- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search and there is no condition that there has to be a seizure. Shri Dave stated that when the jewellery was brought to the residence from the locker on 23-12-1996 and PO was clamped it was mentioned in the panchanama that the search was temporarily concluded. At that time the statement of the assessee was also recorded and question was asked regarding the source of jewellery. In reply to the said question the assessee stated he needs sometime to produce the copies of bills of jewellery purchased. It was in this background that the PO was clamped and time was given to the assessee to produce the evidence with regard to purchase of jewellery. The assessee had himself asked for time which was given by the authorized officer and as such the PO order under section 132(3) cannot be held as unjustified. Moreover there was no inordinate delay as the PO was lifted on 31-1-1997 and as such it cannot be held that the PO was clamped in order to prolong the search. The action of the authorized officer on 30-1-1997 was extension of search continued from 18-12-1996 and 23-12-1996. The assessee was again asked the question about the jewellery on 30-1-1997 and in reply to question No. 4 headmitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee the P.O. prohibitory order was passed at the instance of the assessee as he needed time to produce evidence in support of his claim of purchase of jewellery after 31-3-1996. 15. During rebuttal the ld. Counsel for the assessee Shri Hiro Rai contended that it is wrongly stated by the revenue that the P.O. was imposed at the instance of the assessee. In fact the PO was clamped earlier and said statement was recorded later. He drew our attention to the panchanama dated 23-12-1997 drawn at the residence of the assessee and stated that the column No.6 of the Panchanama which refers to the statement recorded during the search, is blank. It does not state that any statement was recorded up to the time of preparing the said panchanama. Whereas the column No.9 refers to an order under section 132(3). He further stated that the said panchanama mentions that proceedings were closed on 23-12-1996 at 9 PM. Whereas statement was recorded after 9 PM as it is clear from the statement that only first three pages were signed on 23-12-1996 and the balance three pages were signed on 24-12-1996 which clearly shows that the statement was recorded around midnight and much after the P.O. was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 158BE. The relevant provision of section 158BE and Explanation 2 are reproduced below:- 158BE. The order under section 158BC shall be passed.- (a) within one year from the end of the month in which the last of the authorizations for search under section 132 or for requisition under 132A, as the case may be, was executed in cases where a search is initiated or books of account or other documents or any assets are requisitioned after 30-6-1995, but before 1-1-1997; Explanation 2.- For the removal of doubts, it is hereby declared that the authorization referred to in sub-section (1) shall be deemed to have been executed,- (a) in the case of search, on the conclusion of search as recorded in the last panchanama drawn in relation to any person in whose case the warrant of authorization has been issued; (b) in the case requisition under section 132A, on the actual receipt of the books of account or other documents or assets by the Authorised Officer. 18. From bare reading of section 158BE it is clear that the assessment has to be concluded under section 158BC, in cases where the search is initiated after 30-6-1996 but before 1-6-1997, within one year from the end of the month in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clamped at the residence on 23-121996 in execution of authorization warrant on 17-12-1996. The copy of the authorizations dated 23-12-1996 clearly shows that the same were used only once for the purpose of searching the lockers on 23-12-1996. 21. We do not agree with the contentions of the ld. CIT DR that all the authorizations are to be treated as common kitty and the last date of any of the authorizations should be taken as starting point for the purpose of limitation. The section 158BE clearly states that the limitation will start from the end of the month in which last of the authorizations was executed. It pre-supposes that there can be a situation where more than one authorizations for search under section 132 are issued and the execution of the last of the such authorizations is to be considered as the starting point for the purpose of limitation. It clearly refers to the last authorization in case where more than one authorizations are issued. As such it cannot be held that all the authorizations issued should be treated as a common kitty and anyone of the authorization which is executed at the end should be considered for the purpose of limitation. 22. In view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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