2016 (5) TMI 788

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....iled an additional ground contending that the impugned assessment order is time barred. Since it is a legal issue and since it goes to the root of the matter, we have admitted this legal issue and accordingly heard the parties on the same. 4. The facts relating to the legal issue are set out in brief. The revenue carried out search and seizure operations in the hands of the assessee at three places, viz., (a) Radha bhavan office, (b) Bhupen Chambers office and (c) Chennai office. The warrant of authorisation is dated 14.10.1997. The sequence of events is narrated below:- A. Radha bhavan office:- a. Search commenced on 15.10.1997 and it was concluded temporarily on 16.10.1997. Certain documents were seized and they were kept under Prohibitory Order (P.O.) dated 16.10.1997. b. Search commenced again on 27.10.1997 and concluded temporarily. Nothing was seized. P.O. was passed. c. Search commenced again on 03.11.1997 and concluded temporarily. Nothing was seized. P.O. was passed. d. Search commenced again on 17.11.1997 and concluded temporarily. Inventory of shares taken. P.O. was passed. e. Search commenced again on 12.01.1998 and con....

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.... officers, who were not authorised in the search warrant prepared on 14.10.1997. In this regard, the assessee submitted a list containing the names of officers, who have conducted the search for lifting of P.O. As per the list, the search was conducted at Radha Bhavan Office on 27.10.1997, 12.01.1998 and 15.01.1998 by officers named Shri K. Shivaraman and Shri K.G.Vasudevan. It is noticed that these two officials have not been named as authorised officers in the search warrant. In respect of search conducted at Radha Bhavan Office on 3.11.1997 and 17.11.1997, the officials consisted of one authorised officer only. Accordingly the Ld A.R contended that the alleged seizure of share certificates (though disputed by the assessee) that took place on 12.01.1998 and 15.01.1998 have been made by unauthorised officers and hence the said alleged seizure cannot be considered to be a valid seizure made in pursuance of valid search conducted. 7. The Ld A.R also submitted that the search was conducted on 12.01.1998 at Bhpen chambers office by unauthorised officers stated in the previous paragraph, and the search conducted on 17.11.1997 at that place included only one authorised officer. Accor....

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....he search conducted in order to life and/or to pass P.O cannot be considered to be the last of authorization referred to in sec. 158BE of the Act. In the following case laws, it has been held that the Panchanama prepared for lifting and passing of P.O cannot be considered to determine whether the search has come to end or not:- (a) Shahrukh Khan Vs. ACIT (104 ITD 221)(Mum) (b) DCIT Vs. Adlof Patric Pinto (100 ITD 191)(Mum) (c) Javed Mohamd. Peshimam Vs. DCIT (100 TTJ 434)(Mum) (d) M. Sivaramakrishnnaiah & Co. Vs. ACIT (93 TTJ 1035)(Visakh) (e) Sarb Consulate Marine Products (P) Ltd Vs. ACIT (97 ITD 333)(Del) (f) CIT Vs S.K. Katyal (ITA 1198/2008 dated 12.11.2008)(Delhi) (g) Nandlal M Gandhi Vs. ACIT (115 ITD 1)(Mum)(TM). (h) Plastika Enterprises Vs. ACIT (IT(SS)A 238 and 373/Mum/03 dated 28-07-2006. This order of the Tribunal was confirmed by Hon'ble Bombay High Court, vide its order dated 15.12.2008 passed in ITA No.1211 of 2008. (i) ACIT Vs. White & White Mineral (P) Ltd (114 TTJ 405)(Jodh). (j) ACIT Vs. Shree ram Lime products (17 ITR (Trib.) 1 (SB). 12. Recently, this bench of the Tribu....

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....uable beings kept under have been appraised or not. Explanation 2 to section 158 BE does not mean that the time limitation will not start till the prohibitory order passed under section 132(3) is in operation......." 6. In the case before coordinate Bench, the search party visited twice at the residential premises of the assessee on June 19, 1998 and August 1, 1998. On the first visit itself the house was searched and the shares and debentures found were invenorised and kept in the cupboard in the bedroom and prohibitory order was passed under section 132(3) and it was mentioned in the order that all the shares and debentures belonging to the assessee and his family members were kept in the cupboard. On the second visit i.e., 1.8.1998, the search party opened the cupboard and prepared second inventory of same shares and debentures incorporating the distinctive numbers of the shares and debentures. The question before the Tribunal was whether inventory prepared on 19.6.1998 or inventory prepared on 1.8.98 was the last inventory within the meaning of explanation 2 to section 158BE of the Act. The Tribunal answered the question as under:- "Keeping in view the facts o....