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2016 (9) TMI 300
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.... the assessee was not mentioned in the search warrant and consequently assumption of jurisdiction under Section 158BC by the A.O. was bad in law? 2. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in coming to the conclusion that the word 'family' or 'family members' mentioned in the search warrant, do not cover wife and daughter of a person? 3. Whether on the facts and in the circumstances of the case, the learned Tribunal had power to adjudicate on the issue of jurisdiction of the A.O. under Section 158BD, when no such issue was decided by the CIT(A)? 4. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in holding that CIT(A)'s direction, to the A.O., to initiate action under Section 158BD/147 was without authority and CIT(A) has no power to expand the jurisdiction of the A.O.?" 63/2004 "1. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in holding that no legal search has taken place in the case of the assessee under Section 132(1), as specifically the name ....
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....ct, 1961? 2. Whether on the facts and in the circumstances of the case and in law, the C.I.T(A) can direct the A.O. to initiate action against the assessee under Section 158BD/147 of the I.T. Act, 1961, when initially the action was taken under Section 158BC, by the Assessing Officer? 3. Whether the findings and conclusion of the learned Tribunal are perverse and contrary to the fact and untenable in the eye of law?" 3. Since all the aforesaid appeals are admitted on more or less identical questions of law, for the sake of convenience and with the consent of parties, they are being decided by this common order. 4. The brief facts noticed for disposal of these appeals are that a search and seizure operation under Section 132(1) of the Act was carried out on 23.3.1999 and onwards in the case of O.P. Goyal, his two sons Anant Goyal and Sumant Goyal, at their residential premises situate at D-216 A, Bhaskar Marg, Bani Park, Jaipur, and during the course of search incriminating documents, cash, gold ornaments, FDRs, shares & debentures were found by the Authorised Officers and such material were seized and taken in possession by the Authorised Officers. A simulta....
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.... as O.P. Goyal, Mrs. Goyal and family, AK, SK Goyal and later-on it was mentioned as O.P. Goyal and family, Anant Goyal and all family members, Sumant Goyal. The CIT(A) was satisfied with the explanation and contentions raised by the assessees and held that since the search warrant itself did not indicate names of the assessees specifically, the AO was precluded from proceeding ahead with the assessment of the assessees under Section 158-BC, and thus annulled the assessment made by the AO. 7. Dissatisfied with the annulling of the assessment, while the Revenue preferred appeal before the Tribunal, the assessees also preferred cross- objection. The Tribunal also went into the issue and upheld the finding of the CIT(A), who had annulled the assessment proceedings. 8. Learned counsel for the Revenue contended that the AO was well within its domain and had jurisdiction to have issued notice under Section 158-BC. Admittedly, O.P. Goyal, Anant Goyal & Sumant Goyal had moved before the Settlement Commission and indeed the AO could not have taken any action against them but when the warrant did mention to cover "family" that should normally mean the family members of O.P. Goyal, Anan....
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.... It would be appropriate to quote Section 132(1), Section 158-BC, and Section 158-BD, which reads ad infra :- "132(1) Where the [Director General or Director] or the [Chief Commissioner or Commissioner] [or any such [Deputy Director] or [Deputy] Commissioner as may be empowered in this behalf by the Board], in consequence of information in his possession, has reason to believe that- (a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922 (11 of 1922), or under sub-section (1) of section 131 of this Act, or a notice under sub-section (4) of section 22 of the Indian Income-tax Act, 1922, or under sub-section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed 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 summons 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 In....
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....h [Chief Commissioner or Commissioner], has no jurisdiction over the person referred 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 sub-section in all cases whre he has reason to believe that any delay in getting the authorisation from the [Chief Commissioner or Commissioner] having jurisdiction over such person may be prejudicial to the interests 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 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).] 158-BC. Where any search has been conducted under section 132 or ....
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....ng Officer shall proceed [under section 158BC] (inserted by the Finance Act 2002, w.e.f. 1.6.2002) against such other person and the provisions of this Chapter shall apply accordingly." 13. On analysing the provisions of Section 132(1) read with Section 158-BC and 158-BD, while Section 132(1) authorises to carry out search and seizure operation where the Revenue comes into possession of information that an assessee may be evading tax or has reason to suspect that a person has money, bullion and jewellery and other valuable articles or things, books of account etc. which does not depict true income, then a search is necessitated or got conducted. 14. Search and seizure are drastic provisions and does not confer unbridled power to the Revenue Officer. The Revenue must have in consequence of information reason to believe that statutory conditions for the exercise of power to order search exist. The Competent Authority, namely the Commissioner or the Director of Inspection, is supposed to record reason for the belief. Search and seizure under Section 132 of the Act, have a serious invasion upon the right, privacy and freedom of tax payer, it presupposes that powers have to be exe....
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.... sub-section (4) of section 22 of the Indian Income-tax Act, 1922, or under sub-section (1) of section 142 of the Income-tax Act, 1961], is issued to Mr. O.P. Goyal, Mrs. Goyal and family, AK, SK Goyal [name of the person] to produce, or cause to be produced, books of account or other documents which will be useful for, or relevant to, proceedings under the Indian Income-tax Act, 1922, or under the Income-tax Act, 1961, he would not produce, or cause to be produced, such books of account or other documetns as required by such summons or notice; Sarvashri/Shri/Shrimati OP Goyal and family, ANANT Goyal and all family members, Sumant Goyal are/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 eitehr 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, or the Income-tax Act, 1961, And whereas I have reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable articles or things have been kept and are to be found in E-216A Bhask....