TaxTMI 
TaxTMI 
2011 (3) TMI 166
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....ments reported to be incriminating in nature are found and few are seized and others not seized and at the end of search held on 27.03.2003 and 28.03.2003, separate panchanamas are prepared by the authorised officer in the presence of two witnesses and prohibitory orders dated 27.03.2003 and 28.03.2003 respectively are passed u/s.132(3) of the Income Tax Act, from operating certain accounts, FD, RD, lockers etc., standing in the name of the assessee in City bank, Standard Chartered bank, State Bank of Indore, ABN Amro Bank, HDFC Bank, the particulars which are contained in the Prohibitory Order and also from tampering with the contents kept in the wooden alamirah in the bed room said to be belonging to mother of the assessee situated on the right side of the first floor of the residential premises and the steel cabinet placed at the assessee's room situated in his business premises. The search was not concluded and was kept pending and the search was continued on 17.06.2003 in the residential premises and on 12.06.2003 and 14.06.2003 in the business premises on which dates the Prohibitory Orders dated 27.03.2003 and 28.03.2003 in respect of residential and business premises respect....
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.... Tax Act, time limit for completion of block assessment order is two years from the end of the month in which is the execution of the last of authorisation for search under section 132A and as per the Explanation 2(a) under section 158BE authorisation shall be deemed to have been executed on the date last panchanama was drawn in relation to any person in whose case the warrant of authorisation has been issued. According to the learned counsel for the petitioner, the search was concluded in the residential as well as business premises of the petitioner on 27.03.2003 and 28.03.2003 and the two years period for completion of block assessment year is to be reckoned only from the end of month of March during which the execution of the last of the warrant of authorisation is completed. 5. The learned counsel for the petitioner argued so for the following reasons; 1) the search conducted on bank premises on 28.08.2003 in pursuance of warrant of authorisation issued after the conclusion of the search in the residential as well as business premises cannot be treated as in continuation of the search commenced in pursuance of warrant of authorisation on 26.07.2003 and the same shall....
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....on of the search commenced on 26.03.2003 and as the conclusion of the search is on 28.08.2003, the block assessment order passed on 30.06.2005 is not hit by limitation. 7. I heard the rival submissions made on both sides in the light of the facts involved and documents made available herein and in the light of statutory and legal positions relied on both sides. 8.The point arises for consideration herein is as to what is the date of conclusion of the search held at both residential and business premises of the assessee whether it is 27.03.2003 and 28.03.2003 or 28.08.2003 so as to reckon the commencement of time limit of two years for completion of block assessment. 9.Before going into the factual issue raised herein, the legal objection raised against the maintainability of the writ petition is to be first appreciated. It is no doubt true that the petitioner has filed the statutory appeal as well as the present writ petition against the same block assessment order dated 30.06.2005. According to the petitioner, the statutory appeal is against the assessment order on merits and the writ jurisdiction is invoked to decide the validity of the assessment or....
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....etition in favour of the writ petitioner. Applying the same ratio and by considering the different ground on which the block assessment order is challenged before the appellate tribunal and before this court, this Court is inclined to uphold the maintainability of the writ petition. 11.Further the respondents cannot also be allowed to question the maintainability of the writ petition in view of the order passed by this court, on earlier occasion. While disposing of the stay petition herein, our High Court has specifically ordered that the appeal proceedings against the assessment order may go on, however, giving effect to the order of the appellate authority alone is stayed and it will be depending on the outcome of the present writ petition. In view of such order, the writ petitioner and the revenue contested the statutory appeal on merits leaving the question of jurisdiction and limitation to be decided in this writ petition and the appeal is also disposed of on factual issues leaving the two legal issues and the revenue has also preferred further appeal before the board against the order passed against the assessment on merits. That being the conduct of the parties in ....
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....hartered bank is to be necessarily treated as fresh search held on the strength of fresh warrant authorisation. The Division Bench of Delhi High Court in the unreported judgment in Commissioner of Income Tax, Delhi V. Deepak Aggarwal following the earlier judgment of Kerala High Court reported in (i) 2006 282 ITR 158 (Kerala) in Commissioner of Income Tax and another V. Dr.C.Balakrishnan Nair and another; (ii) 2002 ITR 534 (Bombay) in Commissioner of Income Tax V. Mrs.Sandhya P.Naik and others observed that the search u/s.132 of the Act should be continuous and if there is gap, there must be a valid explanation for the gap. In the absence of one such valid and acceptable explanation, the search held on three occasions cannot be treated as continuation of the search commenced on 27.03.2003. Having recorded that the search is finally concluded on 17.06.2003 and 14.06.2003 respectively, the respondents cannot be permitted to introduce a new theory as if the search held on 28.08.2003 is in continuation of the earlier search initiated on 26.03.2003. That being the factual and legal position, the search held on 28.08.2003 and the panchanama dated 28.08.2003 cannot be treated as the last ....
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....itory Orders above referred to are to be treated as the orders passed under section 132(3), the same shall have no force beyond 60 days and no authority is vested upon the officials concerned to extend the same beyond 60 days for any of the reasons mentioned by the revenue. Though the authority concerned is empowered to extend the time beyond 60 days, after obtaining approval of the Director or Commissioner for the reason recorded in writing before 2002 amendment, such power is removed by the Amendment Finance Act 2002 w.e.f. 01.06.2002. As such, it cannot be contended by the revenue that it is only directory and not mandatory. The revenue cannot also permitted to argue that lifting of the order is postponed at the instance of the petitioner for his own convenience. The fact remains undisputed are the Prohibitory Orders dated 27.03.2003 and 28.03.2003 had force of law only till 27.05.2003 and 28.05.2003, as such any search, purported to be held in pursuance of lifting of the Prohibitory Orders on 17.06.2003, 12.06.2003 and 14.06.2003 cannot be treated as search and seizure in the eye of law. Even otherwise, what is done on 17.06.2003, 12.06.2003 and 14.06.2003 is only lifting the P....
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....008) 115 ITD 1 Mumbai in Nandlal M.Gandhi V. Assistant Commissioner of Income Tax, Circle-26(3), Mumbai; (iii) (2007) 290 ITR (AT) 128 Delhi Sarb Consulate Marine Products Private Ltd., V. Assistant Commissioner of Income Tax; (iv) 2002 ITR 534 (Bombay) in Commissioner of Income Tax V. Mrs.Sandhya P.Naik and others; (v) (2007) 104 ITD 221 (Mumbai) in Shahrukh Khan V. Assistant Commissioner of Income Tax, Central Circle-23, Mumbai; (vi) (2006) 100 ITD 191 (Mumbai) in Deputy Commissioner of Income Tax, Circle 4(1)(Inv.) V. Adolf Patric Pinto; (vii) (2007) 12 SOT 34 (Mumbai) in Javed Mohamed Peshimam V. Deputy Commissioner of Income Tax, Mumbai. (viii) 1999 Vol.237 ITR Kerala in Dr.C.Balakrishnan Nair and another V. Commissioner of Income Tax and another and (ix) the unreported judgment of Delhi High Court in Commissioner of Income Tax, Delhi V. Deepak Aggarwal referred to in the earlier paragraph. 18. In all these cases, the income tax Benches of different High Courts and Tribunal/Board have, on identical circumstances, held that the Prohibitory Order passed under section 132(3) shall be in force for 60 days and any search and seizure by lifting Prohibitory Order after 60 d....