TaxTMI 
TaxTMI 
TaxTMI 
2008 (7) TMI 991
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.... the matter to examine the concurrent finding of fact on merits in these matters and restore the order passed by the assessing authority. 2. The substantial questions of law framed in IT Appeal No. 69/2002 are extracted hereunder : "11. Whether the Tribunal is correct in holding that the last drawn Panchnama dated 12th Feb., 1996 should not be taken into consideration for the purpose of computing limitation as per Expln. 2 to section 158BE of the Act, but intermediary date i.e., 19th Jan., 1996 should be the date taken for the purpose of computation of limitation and consequently treat the block assessment order as barred by limitation ? 12. Whether the Tribunal was correct in examining the duration taken for the search from 12th Dec, 1995 to 12th Feb., 1996 raised for the first time by the assessee before the Tribunal when the jurisdiction and the conclusion of the search were never questioned by the assessee in other proceedings and the same had reached finality ? 13. Whether the Tribunal had failed to take into consideration the material evidence and taken into consideration only irrelevant material to record a perverse finding that the search had concluded on 19th Jan., ....
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.... Dec, 1995 at 3.30 p.m. and closed temporarily at 1.15 p.m. on 13th Dec, 1995. Search started at 3.30 p.m. and closed on 13th Dec, 1995 at 1.15 p.m. Several records were seized and thereafter, prohibitory order under section 132(3) of the Act was passed as the authorised officer was under the bonafide belief that further search and seizure are required to be made with regard to undisclosed income of the assessee and thereafter on 19th Jan., 1996 at 3.00 p.m. search was conducted, Panchnama was drawn at 6.30 p.m., no seizure was made. On 7th Feb., 1996 at 9.30 a.m. search commenced and closed at 11.20 a.m. no seizure was made. On 12th Feb., 1996 at 3 p.m. search started and closed at 3.45 p.m. on the same day. Again, search commenced on 13th Dec, 1995 at 12.30 p.m. and closed at 4 p.m. on the same day. No seizure was made as the Panchnama was drawn. In the Panchnama it is recorded that the last Panchnama was drawn and search was concluded. On the same day in respect of the second authorisation issued to conduct search in the residence of the assessee, search was made on 12th Dec, 1995 and closed on the same day at 6 p.m. Panchnama was drawn, cash and other valuables were seized and ....
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....ucting search, he placed strong reliance on Ramaiah Reddy's case (supra). The said legal contention is strongly rebutted by the learned counsel for the assessee, placing strong reliance upon the provisions of section 132(13), wherein it is stated that the provisions of the Cr.PC, 1973 [2 of 1974] relating to search and seizure shall apply, so far as may be, to search and seizure of money, bullion, jewellery, under sub-s. (1) or sub-s. (1A), which provisions provide the procedure required to be followed by either investigation officer or authorised officer for conducting search and seizure of money, bullion, jewellery. 7. Further, the learned counsel submits that in miscellaneous petition filed by the Revenue challenging the finding of fact recorded on the question of limitation framed in the appeal by the assessee was sought to be interfered with, as the same is vitiated on account of error apparent on the face of the record. The said miscellaneous petition was dismissed by the Tribunal after applying its mind to the facts by recording the findings on the question of limitation in the appeal filed by the Revenue holding that there is no ground made out to interfere with its ea....
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....earch in the office premises of the assessee, the search started at 3.30 p.m.. Therefore, we have to treat the second authorisation executed at 3.45 p.m. on 12th Dec, 1995 and Panchnama drawn by the search conducting officer after seizure of cash from the house of the assessee is the last authorisation and the same has to be treated as last Panchnama for the purpose of computation of limitation for the reason that on 13th Dec, 1995 in the residence of the assessee search started at 12.30 p.m. and concluded at .4 p.m., on the same day. On that day, no seizure of either jewellery, cash or bullion was made, only jewellery was inventorised. The above said Panchnama cannot be taken as a valid Panchnama for the purpose, of computation of limitation of passing the assessment order as, the, same is not in conformity with the provisions of section 110 (sic) of the IT Act r/w rr. 104, 105 (sic) and 112(4) of the IT Rules. 11. It is necessary for us to appreciate the rival legal contentions urged by the learned counsel for the parties and it would be necessary for us to extract the provisions of section 158BA, which reads thus : "158BA. Assessment of undisclosed income as a result of searc....
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....police officers or of officers of the Central Government, or of both as may be required, to enter such building or place and search therein and in order to effect an entrance into such building or place, to break open any outer or inner door or window of any building or place, whether that of the person to be searched or of any other person, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance : Provided that, if any such building or place is an apartment in actual occupancy of a woman, who according to custom does not appear in public, the authorised officer shall, before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing and may break open the apartment and enter it." After conducting the search in the residence of the assessee Panchnama was drawn at closure of the search at 1.15 a.m. on 13th Dec, 1995, several records were seized, Panchnama was drawn in this regard and thereafter prohibitory order was passed under section 132(4) of the Act by the search conducting officer and further search was conducted by h....
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....the IT Act on the ground that undisclosed income was found at the time of search in the office premises of the assessee. Therefore, the Tribunal is legally justified in examining the correctness of the last Panchnama dated 12th Feb., 1996 as claimed by the Revenue for the purpose of computation of one year period of limitation as stipulated under section 158BE(1) of the Act to pass block period assessment order against the assessee. According to section 158BE r/w Expln. (ii) to clause (a) Panchnama is an important document for the assessing authority to examine the undisclosed income may be money, bullion, jewellery, anything seized in the presence of two inhabitant witnesses must be proved by examining them before the AO, when the correctness of the same is disputed. Therefore, the Panchnama referred to in the above statutory provision of section 158BE of the Act will be an important documentary evidence for the purpose of computation of limitation to pass block period assessment order against the assessee within the stipulated period of limitation as prescribed either under clause (a) or (b) of section 158BE of the Act as the case may be. In the instant case, the Tribunal has rec....