TaxTMI 
TaxTMI 
2019 (8) TMI 301
X X X X Extracts X X X X
X X X X Extracts X X X X
....ibunal is justified in law, is right in not referring to the decision of the Hon'ble High Court of Delhi in the case of MDLR Resorts (P) Ltd., Vs. the Commissioner of Income Tax, (2013) 40 Taxmann.com 365 holding that, the address mentioned in the search warrant need not be registered office or the head office, but is the place where books of accounts, documents, etc., can be located and as such the order of the Tribunal perverse? 3. Whether on the facts and in the circumstances of the case, the Tribunal is justified in law, in relying upon the decision of the Tribunal in the case of J.M. Trading Corporation Vs. ACIT 20 SOT 489 the facts of which are different and not applicable to the present case?" BRIEF BACKGROUND OF THE CASE: 2. A search was conducted in the case of Sri.K.M.Vishwanath Group of cases on 10.12.2010 on the strength of warrant of search dated 09.12.2010. During the course of search conducted at the business premises of M/s.Associated Mining Company, 18/35, II Link Road, Parvathinagar, Ballari various documents belonging to the assessee came to be seized. 3. Consequently, assessment proceedings under Section 153A of the Income Tax Act, 1961 came to be initiated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt year 2010-11 on 15.10.2010 was different address and not the address of the premises which came to be searched and in fact, Assessing Officer himself had noted the new address of the firm after reconstitution which was on 01.08.2009 and as such, the search carried out at the address indicated in the search warrant being different from the address of the assessee-firm is improper search and as such, allowed the appeals filed by the assessee. Tribunal has relied upon its earlier order in the case of J.M. Trading Corporation vs. Assistant Commissioner of Income Tax reported in (2008) 20 SOT 0489 to allow the appeals filed by assessee. Hence, these appeals are by the revenue. 6. We have heard the arguments of Sri.Y.V.Raviraj, learned Advocate appearing for Revenue and Sri.Mayank Jain, learned Advocate appearing for the assessee. 7. It is the contention of Sri.Y.V.Raviraj, learned Advocate appearing for revenue that Tribunal erred in not appreciating the language employed in Section 132 of the Act to contend that the competent authority, if has reason to believe that any person who satisfies the condition prescribed under Section 132(1) of the Act, then such authority can authorise....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the said contentions. Search and seizure. 132. (1) Where the Principal Director General or Director General or Principal Director or Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or Additional Director or Additional Commissioner or Joint Director or Joint Commissioner 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....documents; (iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search: Provided that bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorised officer shall make a note or inventory of such stock-in-trade of the business; (iv) place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom; (v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing : Provided that where any building, place, vessel, vehicle or aircraft referred to in clause (i) is within the area of jurisdiction of any Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, but such Principal Chief Commissioner or Chief Commissioner or Principal 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ommissioner or Chief Commissioner or Principal Commissioner or Commissioner may, notwithstanding anything contained in section 120, authorise the said officer to take action under any of the clauses aforesaid in respect of such building, place, vessel, vehicle or aircraft. [Explanation.-For the removal of doubts, it is hereby declared that the reason to suspect, as recorded by the income-tax authority under this sub-section, shall not be disclosed to any person or any authority or the Appellate Tribunal.] (2) The authorised officer may requisition the services of any police officer or of any officer of the Central Government, or of both, to assist him for all or any of the purposes specified in sub-section (1) or sub-section (1A) and it shall be the duty of every such officer to comply with such requisition. (3) The authorised officer may, where it is not practicable to seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing, for reasons other than those mentioned in the second proviso to sub-section (1), serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... sub-section (1A) shall not be retained by the authorised officer for a period exceeding thirty days from the date of the order of assessment under section 153A or clause (c) of section 158BC unless the reasons for retaining the same are recorded by him in writing and the approval of the Principal Chief Commissioner or Chief Commissioner, Principal Commissioner or Commissioner, Principal Director General or Director General or Principal Director or Director for such retention is obtained : Provided that the Principal Chief Commissioner or Chief Commissioner, Principal Commissioner or Commissioner, Principal Director General or Director General or Principal Director or Director shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income-tax Act, 1922 (11 of 1922), or this Act in respect of the years for which the books of account or other documents are relevant are completed. (8A) An order under sub-section (3) shall not be in force for a period exceeding sixty days from the date of the order. (9) The person from whose custody any books of account or other documents are seize....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ments seized under subsection (1) or sub-section (1A) objects for any reason to the approval given by the Principal Chief Commissioner or Chief Commissioner, Principal Commissioner or Commissioner, Principal Director General or Director General or Principal Director or Director under subsection (8), he may make an application to the Board stating therein the reasons for such objection and requesting for the return of the books of account or other documents and the Board may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fit. (11) [***] (11A) [***] (12) [***] (13) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizure shall apply, so far as may be, to searches and seizure under sub-section (1) or sub-section (1A). (14) The Board may make rules in relation to any search or seizure under this section ; in particular, and without prejudice to the generality of the foregoing power, such rules may provide for the procedure to be followed by the authorised officer- (i) for obtaining ingress into any building, place, vessel, vehicle or aircraft to be searched where free ingress thereto is no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....referred to in this sub-section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate : Provided also that the Central Government may by rules made by it and published in the Official Gazette (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made 97[and for the relevant assessment year or years]: [Provided also that no notice for assessment or reassessment shall be issued by the Assessing Officer for the relevant assessment year or years unless- (a) the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income, represented in the form of asset, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more in the relevant assessment year or in aggregate in the relevant ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssing Officer is required to assess or re-assess the total income of the said six years. This provision when read in conjunction with Section 132 would indicate that mere conducting of search or in other words, where a search has been initiated under Section 132 would suffice to issue notice under Section 153A and the limitation for completion of the assessment is reckoned and would be counted for the date as recorded in the last panchanama drawn in relation to any person. 13. A plain reading of Section 132 of the Act would disclose that when the competent authority has reason to believe that any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion or jewellery or other valuable articles or other thing represents either wholly or partly, income or property which has not been or would not be disclosed for the purposes of the Act would partake the characteristic of an undisclosed income or property, then, warrant of search would be issued authorising the officer indicated in subclause (A) or (B) to enter and search any building, place, vessel etc., are kept. Thus, the intention of the legislature is clear from the expres....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e noticee, are to be found in the premises at 18/35, II link Road, Parvathinagar, Ballari. The premises which has been searched is the same premises as indicated in the authorisation. This fact is not in dispute. However, what has been disputed is, the said premises did not belong to the assessee. The language or expression of sub-section (1) of Section 132 is clear and unambiguous. The location of the premises is in relation to the satisfaction reached by the authorities mentioned therein and the authorised officer can search any place mentioned in the warrant including any other place where he suspects that the books of accounts belonging to the assessee are kept and as such, the mere change of address of the assessee even being in the know how of the income tax department by itself would not vitiate or invalidate the search conducted under Section 132 of the Act. 17. Even otherwise, in the instant case, the search conducted is in respect of the premises where the business of the firm carried earlier and continued by Sri.K.M.Vishwanath, who no doubt had retired from the partnership of the assessee-firm and it is in this premises where the books of accounts relating to the assess....