TaxTMI 
TaxTMI 
2019 (8) TMI 301
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....h search in valid in the eyes of law? 2. Whether on the facts and in the circumstances of the case, the Tribunal 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 c....
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....0/B/2014. Tribunal, by order under challenge has held that assessee had given the address in return of income filed for the assessment 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 rea....
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....o appreciate the contentions raised, it would be apt and appropriate to extract the relevant provisions of the Act, which would have a bearing on 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 migh....
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....tronic record as defined in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000), to afford the authorised officer the necessary facility to inspect such books of account or other 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 ....
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....Additional Director or Additional Commissioner or Joint Director or Joint Commissioner to take action under clauses (i) to (v) of sub-section (1) are or is kept in any building, place, vessel, vehicle or aircraft not mentioned in the authorisation under sub-section (1), such Principal Chief Commissioner 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 ....
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....g of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested. (5) [***] (6) [***] (7) [***] (8) The books of account or other documents seized under sub-section (1) or 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 a....
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....te on which the last of the authorisations for search was executed, make a reference to a Valuation Officer referred to in section 142A, who shall estimate the fair market value of the property in the manner provided under that section and submit a report of the estimate to the said officer within a period of sixty days from the date of receipt of such reference.] (10) If a person legally entitled to the books of account or other documents 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 shal....
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....ch is conducted or requisition is made 96[and for the relevant assessment year or years] : Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years 96[and for the relevant assessment year or years] : Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years 96[and for the relevant assessment year or years] 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 ....
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.... reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year." 12. A plain reading of Section 153A would indicate that it is a non-obstante provision which is invoked in case of a person where the search is initiated under Section 132 or books of account, other documents or any assets are requisitioned under Section 132A. It mandates that notice under Section 153A is to be issued, calling upon the assessee in whose case the search was conducted to file return of income for six assessment years in the prescribed form and thereupon the Assessing 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....
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....e premises occupied by the assessee was not entered upon and searched by the authorised officer. Hence, the judgment of J.M.Trading Corporation was held as not espousing the cause of the assessee - MDLR Resorts (P) Limited. 16. In this background, we have perused the warrant of authorisation issued under Section 132 of the Act and Rule 112(1) of the Income Tax Rules, 1962 which would clearly indicate that said warrant was issued for conducting the search of M/s.Associated Mining Company expressing thereunder that authority contemplated under sub Section (1) of Section 132 has reason to suspect that such books of account, other documents of the 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 ment....