TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 58
X X X X Extracts X X X X
X X X X Extracts X X X X
....har along with Ms. Yashika Bondwal, learned counsel ORDER PER : JUSTICE VIVEK RUSIA The present writ petition under Article 226 of the Constitution of India and the connected Income Tax Appeals under Section 260A of the Income Tax Act, 1961 (in short 'the Act') arise out of a common action of survey undertaken on 2nd and 3rd May, 2006 by the officers of the Income Tax Department, Indore at the business-cum-residential premises of Lunkad Media and a group of companies. 02. Aggrieved by the nature and manner of the proceedings including the entry into the residential premises, seizure of records in excess of the authority conferred by Section 133A of the Act and the denial of books of account post-survey M/s Lunkad Media had preferred the present petition before this Court seeking appropriate reliefs such as quashment of the survey proceedings, the impounding of documents and the assessment orders passed without providing access to the seized records. The petitioners / appellants have subsequently also challenged the legality of the entire action and the orders passed by the Income Tax Appellate Tribunal (ITAT) in the connected income tax appeals. 03. Since the factual m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....areas. The survey continued throughout the day and extended well into the early hours of the following morning on 03.05.2006. 08. A consolidated impounding order under Section 133A (3) (ia) of the Act was passed around 1:20 am on 03.05.2006 by the Income Tax Officer, Indore. A common annexure was prepared listing the documents, files and computer storage devices seized during the operation. The impounded materials include records not only of Lunkad Media & Entertainment Ltd., but also of the other group entities operating from the same premises. A statement of Shri Vijay Lunkad was recorded despite his express protest regarding his lack of connection with the companies. Subsequent to the impounding, an order dated 15.05.2006 was passed granting approval for the retention of the documents. Thereafter, vide letter dated 31.05.2006, the Director of Lunkad Media & Entertainment Ltd. was directed to appear before the officer concerned between 12.06.2006 and 16.06.2006 to copy data from a hard disk that had been impounded during the survey. 09. The petitioners / appellants contended that the survey was actually in the nature of a search, carried out without compliance with the mandator....
X X X X Extracts X X X X
X X X X Extracts X X X X
....assessments on the ground that the assessee's had been denied the opportunity to effectively rebut the proposed additions in absence of their own seized records. The learned Commissioner of Appeals partially dismissed the appeals, holding that the assessments were validly completed based on materials available on record and that sufficient opportunity had been given to the appellants to represent their case. 14. Aggrieved by the order of the Commissioner, the appellants preferred Income Tax Appeal before the Income Tax Appellate Tribunal (ITAT), which were registered and heard as ITA Nos.119/2011 to 138/2011 for various assessment years. The Income Tax Departments also filed Income Tax Appeals. During the course of hearing, applications were moved by the appellants, specifically praying for issuance of directions to the Assessing Officer for supplying certified copies of the relevant seized records. 15. The learned Tribunal by its interim direction ordered the department to provide photocopies of the documents, pursuant to which a bundle of papers was handed over to the appellants on or around 25.01.2012. However, upon examination of the material so furnished, the appellants disc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en accorded to the Appellant by remanding the case? 4. Whether the survey operation carried out on 2/3.5.2006 was actually a "search", in view of the letter dated 21.12.2011 of the ACIT 3 (1) Indore? 5. Whether the order of assessments, as confirmed by ITAT, is bad in law and illegal as they were passed without following the procedure under Section 153-A, 153-B,153-C and 153-D? SUBMISSIONS OF APPELLANTS / ASSESSEES 19. Shri S.C. Bagadiya, learned Senior Counsel for the petitioners / appellants, submitted that the proceedings initiated under Section 133A of the Act were in effect an unauthorized search conducted without following due process, rendering the entire action without jurisdiction. Learned Senior Counsel submitted that the documents and digital records were impounded in excess of the powers conferred under a survey and were retained without justification and despite repeated requests were not properly provided, meaning thereby, depriving the petitioners of a fair opportunity to explain its accounts during assessment and appeal. Learned Senior Counsel further submitted that the learned Tribunal failed to consider this denial of natural justice and proceeded mechanical....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lled books of accounts. In support of the aforesaid contentions, reliance has been placed upon a judgment delivered by the Apex Court in the case of Central Bureau of Investigation v/s V.C. Shukla & Others reported in (1998) 3 SCC 410. SUBMISSIONS OF RESPONDENTS 24. Shri Harsh Parashar, learned counsel for Income Tax Department submitted that the survey under Section 133A of the Income Tax Act was duly authorized and lawfully conducted at 13, Race Course Road, Indore, which served as the common premises for multiple interconnected companies. Learned counsel submitted that incriminating documents revealing unaccounted cash transactions, bogus payments were lawfully impounded after recording reasons and obtaining necessary approvals, and that the continuation of the survey and consequential actions under Sections 131 and 281B of the Act were within the scope of statutory powers and the writ petition is devoid of merit and liable to be dismissed. 25. Learned counsel submitted that the findings recorded by the learned ITAT are based on an appreciation of material facts / evidence placed on record and since all questions of law framed are relating to disputes of facts which have alre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to them is without any factual foundation and has no merit in it. 30. Learned counsel on the question of whether the survey conducted on 2nd May 2006 was actually a 'search' submitted that this argument is based only on one internal letter dated 21.12.2011, where the word 'search' was used loosely. The actual authorization for the operation was under Section 133A of the Act, which permits only a survey and not a search. Learned counsel submitted that the survey was conducted after following due procedures and conducted without any undue pressure or coercion which was also confirmed by the independent witness (Shri Moolchand Garg, C.A.) present at the place during the survey. Hence, the challenge on this ground is not maintainable as all these facts have already been dealt with by all the authorities and confirmed by ITAT. 31. Learned counsel with regard to the applicability of Sections 153A to 153D of the apply to the survey proceedings under Section 133A. Learned counsel submitted that the action undertaken by the officers in the present case was a survey under Section 133A, which was followed by the assessments made under the regular provisions and thus, are val....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on payment of charge prescribed under the law, hence, the respondents were directed to supply, in case the petitioners appliy for grant of certified copies of the relevant book of account and other documents. 35. During the pendency of this petition, the assessment proceedings were completed by the Assessing Officer. During the pendency of this petition, an interlocutory application was filed on 07.03.2007 seeking direction to hand over the assessment orders to the petitioners. The said order was complied with by the respondent. Thereafter, the appeals were filed before the learned CIT, which were partly allowed, and the petitioners, thereafter, filed Income Tax Appeals before the learned ITAT, and all were dismissed by a common order. The petitioners have preferred the aforesaid income tax appeals, which have been admitted on common questions of law. Since all the impugned orders have culminated in assessment orders and have been upheld by the ITAT, therefore, this writ petition has rendered infructuous as all the appeals are liable to be decided on the question of law framed by this Court while admitting the appeal. 36. Hence, Writ Petition No.4554 of 2006 stands dismissed hav....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... subsequent Assessment Years - 2002 - 03, 2004 - 05, 2005 - 06 and 2007 - 08 against Rajvir Marketing and Investment Ltd., West and Management Technologies Ltd. Indore, Lunkad Securities, M/s Lunkad Media End Management & Technologies Private Ltd., M/s Partsons Security Ltd. The CIT partly allowed the appeal filed by the aforesaid companies after observing that during the appellate proceedings, no details had been furnished and the fact that assessee's had not filed even the return of income tax for the Assessment Year - 2007 - 08 in the case of all these four companies. The CIT found it appropriate to divide the quantum of addition equally among all four companies. 40. Being aggrieved by the order of CIT, the revenue as well as the assessee's preferred ITAs before the ITAT. Vide order dated 31.01.2012, all the appeals filed by the revenue as well as assessee's were dismissed. The learned ITAT has observed that the assessee could not explain either before the Assessing Officer or before the CIT, and even before the Tribunal, to controvert the date-wise receipts and deposits of cash in the several bank accounts on which the Assessing Officer has made the addition in the assessment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h Court seeking quashment of the FIR and charges. The writ petitions were allowed by common order, and the proceedings of two cases, i.e. CC No.15/1996 & CC No.17/1996, were quashed, in which Shri L.K. Advani and Shri V.C. Shukla were added as accused. 43. In the said case, the issue came up for consideration before the Apex Court whether loose sheets or scraps of papers can be treated as entries in the books of account regularly kept in the course of business. The Apex Court in paragraphs - 46 & 47 held that statements in the books of account of persons are admissions and can be used against Jains, but cannot be used against any person like Shri L.K. Advani or Shri V.C. Shukla. But in the present case, all these materials collected from the premises of Lunkad Media & Entertainment were duly examined and verified from the bank accounts' statement by the Assessing Officer against the appellants. The appellants, being assessee's, were given ample opportunity to produce the concrete material to rebut the same, but even no income tax return was filed to explain those money receipts. Therefore, in the hawala case, the evidentiary values of these materials were examined under the pr....