2011 (6) TMI 1031

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....tion of assessment u/s.153A and decide the other grounds on merits after giving proper opportunity of being heard to the assessee. Against this order, the assessee went on appeal u/s. 260A before the Hon'ble High Court of Orissa and vide order dt. 2.7.2010 in ITA No.71 of 2009 Hon'ble Court has disposed of the same holding that the Tribunal has to decide the matter in the light of the legal position highlighted in the said order after verifying the records with regard to the stand taken by the assessee and because of inadequate factual findings, they directed the Tribunal to rehear the matter and afterwards if the Tribunal comes to the conclusion that there was no search warrant in the name of the assessee, as contended by the assessee, the....

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....nd of jurisdiction raised by the assessee in this matter. 3. The learned AR of the assessee has reiterated his stand to the effect that in view of the decision of Hon'ble Orissa High Court (supra) the Tribunal has to come to a conclusion whether there was search warrant issued in the name of the assessee or not and since the learned DR is not able to produce any such record or the alleged warrant of search issued in the name of the assessee before the Tribunal, hence, as per the direction of the Hon'ble jurisdictional High Court in paragraph 10 of the order dt.2.7.2010 at page 16, it is evident that there is no such warrant in the case of the assessee and therefore, the entire proceedings initiated u/s.153A is without jurisdiction and is....

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....arrant of search issued in the name of the assessee to conduct the search u/s.132 is correct, hence, no proceeding u/s.153A could be initiated against the assessee. If find suitable to the Department they have to proceed with the assessee u/s.153C only after following the mandatory requirements as mentioned in the law. In view of non-production of search warrant stated to have been issued in the name of the assessee by the Department, we are of the considered view that the Department is not able to produce anything much less the alleged search warrant stated to have been issued in the name of the assessee. Therefore, as contended by the learned AR of the assessee, it is clear that no proceedings u/s.153A could be initiated against the asses....