AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 1061
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppreciate that no such assessment could be framed u/s 153A of the Act as there was complete absence of incriminating material belonging to the Appellant and the proceedings were not abated. Thus, the order passed by CIT(A) on this issue should be reversed and this ground of appeal of the assessee should be allowed." 3. Apropos said ground of appeal the ld. Assessee's representative (AR) submitted that there was no search in the business premises of the assessee and, in fact, there was a survey operation on the assessee u/s 133A of the Income-tax Act, 1961 (for short, 'the Act'). Therefore, the assessment orders passed u/s 153A r.w.s. 143(3) of the Act are void ab initio being bad in law. The ld. Counsel submitted that before the ld.CIT(A), the assessee raised ground No.1 and 7 to agitate the legal issue that the AO has erred on facts and in law in completing the assessment u/s 153A r.w.s. 143(3) of the Act despite the fact that no search operation had taken place on the assessee. Therefore, the impugned assessment order is arbitrary, illegal and bad in law and in violation of rudimentary principles of contemporary jurisprudence. The ld. Counsel vehemently pointed out that the ld....
X X X X Extracts X X X X
X X X X Extracts X X X X
....AO u/s 153A r.w.s. 143(3) of the Act dated 30.03.2014 is void ab initio and bad in law as the AO did not assume valid jurisdiction to frame such assessment without any search and seizure operation on the assessee. 6. The ld. Counsel submitted that on the very same date i.e., 17.08.2011 a search and seizure operation was conducted on AEZ Infratech Pvt.. Ltd., and Aeren Buildwell Pvt. Ltd., at their addresses 301-303, Bakshi House, 40-41, Nehru Place, New Delhi, and this address is mentioned in Form No.35, warrant of authorization, panchnama and assessment order framed u/s 153A r.w.s. 143(3) of the Act. The ld. Counsel also explained that from the copy of the authorization u/s 133A of the Act, it is clear that a survey operation u/s 133A was conducted on the assessee at its address 1411, Chiranjivi Tower, 43, Nehru Place, New Delhi, which was concluded on 18.08.2011 by preparing impounding order on 18.08.2011, therefore, the documents submitted by the Department itself reveals that there was only survey operation u/s 133A of the Act on the assessee and there was no search and seizure operation on the assessee u/s 132 of the Act and merely because the name of the assessee was menti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Kailash Jai Aeren, Vice Chairman and Managing Director of the assessee company was recorded, therefore, it is amply clear that there was only a survey operation on the assessee. Coincidentally on the very same date search operation was conducted on other entities namely M/s AEZ Infratech Pvt. Ltd. and Aeren Buildwell Pvt. Ltd., and there was no search and seizure operation u/s 132(4) of the Act on the assessee. In absence of any search and seizure operation, the AO did not assume valid jurisdiction to issue notice u/s 153A of the Act and to frame assessment order u/s 153A r.w.s. 143(3) of the Act. Therefore, the impugned assessment order as well as the first appellate order may kindly be quashed being void ab initio and bad in law. 9. On careful consideration of above submissions, first of all, we note that the ld.CIT-DR did not controvert the fact that the address of the assessee is 1411, Chiranjivi Tower, 43, Nehru Place, New Delhi and 1603, Chiranjiv Tower, 43, Nehru Place, New Delhi and the documents placed by the Department along with the written submission dated 30.08.2022 and documents submitted by the assessee at pages 272-275 of the assessee's paper book I and documents....
X X X X Extracts X X X X
X X X X Extracts X X X X
....CIT, ITA No.682/Mum/2016, order dated 04.01.2018; (ii) Dr. Mansukh Kanjibhai Shah vs. ACIT, ITA No.2878/Ahd/2007, order dated 21.05.2010; (iii) Lords Distilleries vs. DCIT, MANU/ID/1256/2018. 12. In the case of Regency Mahavir Properties (supra), the coordinate Bench of the Tribunal, in the identical facts and circumstances, held as follows:- "6. The learned AR before us submitted that the assessee has taken this ground before the CIT(A) but the CIT(A) dismissed the ground mentioning that this ground does not emanate from the order of the Assessing Officer as the assessee has not taken this issue before the Assessing Officer. It was contended that this ground is a legal ground and has to be admitted. The learned DR, on the other hand, relied on the order of the CIT(A) and submitted that there has been search carried out in assessee's case at 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar- 2, which is the address and the business place of partner of the assessee firm. The law nowhere mentions that in case of a partnership firm search can be carried out only at the address mentioned in the partnership deed and in this re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t can be made by issuing notice u/s. 153A of the Act. It is not denied that the search warrant on the basis of which the search has been conducted at the premises 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar-2, contained the name of the assessee but this premises where the search has been conducted does not belong to the assessee firm nor the assessee firm was carrying on any business from the said place. The premises where the search was conducted relate to Konark Project Ltd., in which one of the assessee's partner is interested. But this is not the address of the assessee firm. The assessee's firm is constituted on 26.08.2005 vide partnership deed dated 26.08.2005 and subsequently amended vide deed dated 30.06.2006 and 3.11.2006. The address in the partnership deed dated 26.08.2005 and 30.06.2006 is 2418, East Street, Thakkar House, 1st Wing Camp, Pune and in the deed dated 3.11.2006, the address is 5th Avenue, Dhole Patil Road, Pune. These are the address of principal place of business of the assessee is constituted. It is also not denied that in Income Tax database i.e. PAN/TIN record the address of the assessee from 2.11.2006 is appeari....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Hall, Ulhasnagar-2. We also noted that the Panchnama has been drawn showing the search being conducted at the premises of the assessee. In our view, the Assessing Officer assumed the jurisdiction to issue notice u/s. 153A and made assessment in consequence of search action being taken u/s. 132 of the Income tax Act. Before deciding whether the Assessing Officer has validly assumed the jurisdiction u/s. 153A, it is necessary to analyze the provisions of section 132(1) as well as 153A. The provisions of section 153A, 153B and 132(1) are reproduced as under: "153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section-15-1 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years [and for the relevant assessment year or years] referred Co in cl....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Indian Income-tax Act, 1922 (11 of 1922), or under this Act, or (c) any person 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 either 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 (11 of 1922), or this Act (hereinafter in this section referred to as the undisclosed income or property). From the reading of these provisions, it is clear that section 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the assessment order will validate the action of the Assessing Officer that the assessee was carrying on the business from the same premises. The address mentioned in the notice issued u/s. 143(2) and the demand notice generated on line as well as the PAN/TIN, copies of which were filed before us, clearly prove that 111/112, Anil Complex, New Link Road, Near Regency Marriage Hall, Ulhasnagar-2. , where the search was conducted is not the business address of the assessee. In view of these facts, we are of the opinion that the conditions stipulated u/s. 153A, for the issue of notice, are not satisfied. Until and unless the Assessing Officer assumes the valid jurisdiction u/s. 153A the assessment made in consequence of the notice issued u/s. 153A, in our view is invalid and void ab initio. We accordingly quash the assessment made by the Assessing Officer." 13. Similar view has been taken by the coordinate Bench of ITAT, Ahmedabad in the case of Dr. Mansukh Kanjibhai Shah (supra). Relevant para 9.5 reads as follows:- "9.5 Considering the above provisions as noted above in the light of the provisions of section 153A of the Act, it would be clear that once the warrant of aut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Managing Director of the company Shri Kailash Jai Aeren was recorded and documents were also impounded by the survey team. From the copies of the warrant of authorization u/s 132 of the Act dated 16.08.2011 and panchnama drawn on the conclusion of search and seizure operation on 18.08.2011, we note that though the name of the assessee has been mentioned along with two other entities, but, the address mentioned in the said warrant of authorization and panchnama does not belong to the assessee and, neither any officer bearer or staff member participated in the said search and seizure operation which was concluded on 18.08.2011. 15. Therefore, as per the scheme of the Act and provisions of section 153A of the Act, the AO assumes valid jurisdiction to issue notice u/s 133A of the Act and to frame assessment order u/s 153 r.w.s. 143(3) of the Act only on the entity on which the search u/s 132(4) was initiated, conducted and concluded. In the present case from the warrant of authorization and panchnama although it seems that the name of the assessee has been mentioned therein, but, the address is different and, at the time of initiation of search, during the course of search and on ....