TaxTMI 
TaxTMI 
2014 (3) TMI 612
X X X X Extracts X X X X
X X X X Extracts X X X X
....in deleting the addition of Rs. 1,80,53,000/- made by the Assessing Officer on account of undisclosed income on the basis of seized documents. 3. The common Cross Objections raised by the assessee for all these three years are as follows:- "1. That the learned Commissioner of Income Tax (Appeals) III, New Delhi has erred both in law and on facts in upholding the assessment u/s 153A/143 (3) of the Act despite the fact that proceedings were without jurisdiction since no search has been conducted on the assessee as its name was not mentioned in any of the panchnama. 2. That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that until and unless, there is a panchnama drawn in the name of the appellant, it cannot be held that there is a search conducted under section 132 (1) of the Act so as to assume jurisdiction under section 153A of the Act. In view of the decision of Hon'ble Tribunal in the case of J.M. Trading Corporation vs. ACIT reported in 20 SOT 489 upheld by Bombay High Court in judgment dated 29.06.2009 in ITA No.276/2009. 3. That the learned Commissioner of Income Tax (Appeals) has further erred both in law and on facts is failed to ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d, the proceedings were without any jurisdiction; that the Assessing Officer has himself not denied the absence of the assessee's name in the Panchnama; that the Assessing Officer has made two observations in this regard, i.e., in the Warrant of Authorization executed at 3rd Floor, Global Arcade, MG Road, Gurgaon (Party B-7), the name of the assessee company M/s Sarvmangalam Builders & Developers Pvt. Ltd. was appearing and that further, the residence of the Director, Shri Punit Beriwala was also covered during the search operation; that the Assessing Officer observed that in these facts, the proceedings u/s 153A had been rightly initiated in the case of the assessee and the objection of the assessee challenging the validity of the assessment proceedings was being rejected; in its written submissions before the Ld. CIT (A) (copy at APB 125-139), the assessee had taken a specific objection to the aforesaid action of the Assessing Officer; the matter had been remitted by the Ld. CIT (A) to the Assessing Officer; the Assessing Officer had filed a remand report; the assessee's rejoinder to such remand report is contained at APB 179-181; that therein, the assessee had taken a fu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is statutory requirement to do so and, therefore, the Tribunal is precluded from hearing objection raised by the assessee; that even otherwise, no cross appeal was filed by the assessee to the appeal filed by the department and it is only that the assessee has come up by way of the Cross Objections which shows the change of mind of the assessee; that as per Section 153A of the Act, a notice thereunder needs must be issued where a search is 'initiated' u/s 132; that in the present case, the assessee's name was mentioned in the Authorisation Warrant; that so, the search was validly initiated; that therefore, the notice u/s 153A was validly issued; that apropos the High Court Order (supra) in the case of 'J.M. Trading', the department's appeal was dismissed as no question of law was found to be involved; that therefore, this order is of no help to the assessee; that even the Tribunal order in the case of J.M. Trading (supra) does not aid the case of the assessee on facts, since, in that case, the premises searched was owned by the assessee, but it had been rented to another concern, which is not the case herein; that apropos the assessee's objection of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or determining the authority of the proceedings u/s 153A is the existence of the name in the Authorisation Warrant and not the Panchnama; that therefore, absence of some names in the Panchnama, which otherwise figure in the Warrant of Authorisation, is not fatal for the framing of assessment u/s 153A of the Act; that if for the sake of convenience, instead of mentioning all the names of the persons, the proceedings are concluded by drawing a Panchnama, wherein, after mentioning one or two names out of the many names mentioned in the Warrant of Authorisation, the word 'etc.' is written by the Authorised Officer, the proceedings u/s 153A will not get vitiated; and that in the Warrant of Authorisation issued in the case of the assessee, a copy whereof is at APB 177-178, the name of the assessee has been specifically mentioned. 8. We have heard the parties on these preliminary objections raised by the assessee. The issues involved are two-fold - as to whether in the absence of the assessee's name being mentioned in the Panchnama, jurisdiction u/s 153A of the Act was not validly invoked and as to whether since the premises searched was not owned by the assessee, the searc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Paper Book. It will be seen that in none of the above, it has either been alleged and in fact, could not have otherwise been alleged that premises at 3rd Floor, Global Arcade, MG Road, Gurgaon was premises of the appellant company and since the premises at 3rd Floor, Global Arcade, MG Road, Gurgaon was not premises of the appellant company, it could not be validly held that any search was conducted on the appellant company. In fact, it appears this was the very reason, whereby no panchnama has been prepared in the name of the appellant company and, thus no search was conducted on the appellant company. In view thereof, it is respectful submission of the appellant that the comments of the learned Assistant Commissioner of Income Tax are arguments in despair and are not supported by any valid, legal justification much less factual substance. The appellant here, seeks to refer to the judgment of the Mumbai Bench in the case of J.M. Trading Corporation vs. CIT reported in 22 SOT 489 wherein it has been held that, even if search carried out on the premises owned by the assessee but rented to any concern, the same does not any implication as a proof of conduct of search on the appellan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the factum of the said premises not belonging to the assessee. Even the document pertaining to the assessee, which was found from this premises in the search was, as stated by the ld. Counsel for the assessee before us on query, owned up by the Vipul Group and surrender was made by them on the basis thereof. Thus, indisputably, there is nothing on record to connect the assessee with the premises searched. Now, in 'JM Trading Corporation', 20 SOT 489 (Mum) (supra), it has been observed, inter alia, that mere search of the premises owned by the assessee but rented to another concern does not by any implication, prove the conduct of search against the assessee, in view of the fact that the assessee was not available at the address searched upon. In the present case, the situation is rather more in favour of the assessee. Here, it is not that the premises was owned by the assessee but was rented out. Rather, undisputedly, the premises searched does not belong to the assessee. The department's appeal in the case of 'JM Trading Corporation' was dismissed in limine for want of substantial question of law by the Hon'ble High Court of Bombay. While doing so, the find....