AI Drafter 
TaxTMI 
TaxTMI 
2013 (10) TMI 972
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2 In these appeals, common issue raised by the assessee vide grounds No. 1 & 4 relates to the legal issue concerning the validity of the assessment order. 3. Facts related to this issue in brief are that a search operation under section 132 of the I.T. Act, 1961 (hereinafter referred to as "Act", for brevity) was carried out on 29/03/2007 at room No. 403 of hotel Shalimar, Jaipur, where the assessee was staying. During the course of search operation, some alleged incriminating documents, note books containing details of unexplained payments were claimed to be found and seized. Thereafter, notice under section 153A of the Act was issued by the Assessing Officer. Assessee filed his returns of income for different years on 08/12/2008 and the assessments were completed on 23/12/2008 as per the following details:- Assessment Year Income declared (Rs.) Assessed Income (Rs.) 2002-03 64,037-00 76,000-00 2003-04 60,583-00 7,91,960-00 2005-06 1,03,987-00 6,05,490-00 2006-07 1,40,639-00 11,59,140-00 2007-08 4,46,280-00 53,21,160-00 4. Before the learned CIT(A), the assessee challenged the validity of search and submitted that search....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rd. In this case the asstt. was completed u/s 153A r.w.s. 143/153B of the Income Tax Act, 1961. As per section 153A, in the case of a person where search is initiated u/s 132 after 31/05/2003, the A.O. shall issue a notice to him calling for return of income for each of the asstt. Years falling within 6 assessment years immediately preceding the asstt. year relevant to the previous year in which search is conducted and shall also assess or reassess the total income for these asstt. years. Thus the basic requirement for exercising jurisdiction u/s 153A is that search u/s 132 should have been taken in the case of the concerned person. Therefore, the moment it is proved that search had taken place in the case of an assessee, the A.O. is justified in resorting to section 153A and in making asstt. u/s 153A. Therefore, the basic requirement is whether search was conducted or not. In this case, it is not in dispute that search u/s 132 was conducted on the assessee on 29.3.2007 and during the course of search operations, some incriminating documents, note books etc. containing details of unexplained payments were found and seized by the department. I have also perused the relevant folder f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stated that nothing was requisitioned from the police by the income-tax department. So, there was no satisfaction of the Assessing Officer for conducting the search on the assessee and since there was no material to suggest search on the assessee, therefore, the search was invalid. 7. In his rival submissions, ld. D.R. submitted that initiation and conduct of search is an administrative Act, which cannot be made a subject matter of the appeal. Therefore, ITAT do not have power to examine the issue of validity of search. However, he agreed to produce satisfaction note and not search folder to show the factum of existence of the material. 8. We have considered the submissions of both the parties and carefully gone through the material available on record. During the course of hearing, on the direction of this bench of the tribunal, learned C.I.T. D.R. had shown us copy of the satisfaction recorded by the Assessing Officer. We have gone through the certified copy of the satisfaction note furnished by the learned C.I.T. D.R. In the said note, it is mentioned that SP CBI informed telephonically that they had got information regarding undisclosed cash being carried by Shri P.R. Bha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ailed 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 summon 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, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property [ which has not been, or would not be disclosed] for the purposes of the Indian Income- tax Act, 1922 (11 of 1922 ) or this Act (hereinafter in this section referred to as the undisclosed income or property), (A) the [ Director General or Director] or the [ Chief Commissioner or Commissioner], as the case may be, may authorise any [ Additional Director or Additional Commissioner or], [Assistant Director], [or Deputy Director]] [ Assistant Commissioner [or Deputy Commissioner] or Income- tax Officer], or (B) such [ Addit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rred 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 subsection in all cases where he has reason to believe that any delay in getting the authorisation for the [ Chief Commissioner or Commissioner] having jurisdiction over such person may be prejudicial to the interest of the revenue:] [Provided further that where it is not possible or practicable to take physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of a dangerous nature, the authorised officer may serve an order on the owner or the person who is in immediate possession or control on the owner or the person who is in immediate possession or control thereof that he shall not remove part with or otherwise deal with it, except with the previous permission of such authorised officer and such action of the authorised officer shall be deemed to be seizure of such valuable article or thing under clause (iii)] [Provided also that nothing contained in the second proviso shall apply in case of any val....