TaxTMI 
TaxTMI 
2024 (7) TMI 1714
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....r the assessee pressed only one issue which is summarized as below: "For that the Ld. CIT(A) has erred in law and on facts by not quashing the assessment framed u/s. 153A of the Income Tax Act, 1961 (hereinafter referred to as the "Act") dated 30.12.2017 on the ground that though there was initiation of search u/s. 132(1) of the Act but in fact no search operation has been conducted on the premises of the assessee." 4. The facts in brief are that a search operation u/s. 132 of the Act was conducted on 01.12.2015 on several group companies and a search operation was carried out at 206, Central Point, Second Floor, 21, Hemant Basu Sarani, Kolkata (hereinafter referred to as the said "premises"). The said premises do not belong to the assessee before us which was partnership concerns nonetheless the premises belonged to a partner in the above assessee who were running its business operation from those premises. M/s. Roop Alankar has its principal place of business at Asansol, West Bengal whereas the second assessee M/s. Jayanti Jewels has its principal place of business at Raniganj. Both the entities were dealing in jewellery. The assessee filed its return of income with C....
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....s searched was 206, Central Point, Second Floor, 21, Hemant Basu Sarani, Kolkata. During the search operation,search party did not find any incriminating material qua the assessee though some documents were impounded by the survey team from the business premises of the assessee from Asansol. The Ld. AR vehemently submitted that the assessment framed by the AO in the above case u/s. 143(3) read with sec. 153A is invalid and void ab initio as no such assessment could have been framed for the want of search operation on the assessee's business premises and at the most if any search operation had taken place at the third party premises i.e. a premises belonging to the partner of the assessee at Kolkata and some incriminating materials were found and seized, then the assessment should have been framed u/s. 153C of the Act after complying with the necessary procedure of recording of satisfaction by the AO of the searched person as well as by the AO of the other person. The Ld. AR submitted that since in the assessee's case no search action has been conducted on the assessee, therefore, the assessment framed by the AO u/s 143(3) r.w.s.153A of the Act may kindly be quashed. In defense of h....
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....chanama that there was no search on the business premises of the assessee and consequently, though there was a valid initiation of search against the assessee but the premises belonging the assessee was not searched. We find merit in the contentions of the Ld. AR that where there was no conduct of search on the premises of the assessee, the assessment u/s. 143(3) of the Act r.w.s. 153A of the Act cannot be framed. In our opinion, in the worst case scenario, if there has been any seizure of any incriminating material relating to assessee from the premises of the partner then the right course would be to frame assessment u/s. 143(3) read with sec. 153C of the Act after following the procedure as laid down under the Act i.e. after recording the satisfaction of the searched person as well as the satisfaction of the AO of the other person. But the facts of the instant case before us are quite different. In our opinion, virtually no search is conducted on the assessee and therefore, the assessment framed u/s. 153A read with sec. 143(3) is invalid and void ab initio. The case of the assessee finds support from the decision of the Coordinate Bench in the case of J.M. Trading Corpn. (supra)....
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....f his books of account were found or seized and in respect of the valuables also the assessee clarifies that none of his valuables were available at the above said address as the said premises were rented out to SSKI group by the assessee and its sister concerns. In the body of order under section 143(3) read with section 153A of the Income-tax Act, the Assessing Officer also observes that 'there was search and seizure action under section 132 of the Income-tax Act on SSKI Group and by warrant dated 1-8-2003, the assessee was also covered under the search. The premises whereas the assessee was found was not searched. 22. The fact that search under section 132 of the Act have been conducted on the assessee, is a condition precedent to be satisfied before start of any proceedings against the assessee. Section 158BC of the Income-tax Act, provides the procedure for block assessment in all such cases where search has been conducted under section 132 or books of account or other documents requisitioned under section 132A of the Income-tax Act for searches conducted upto 31-5-2003. Thus, the jurisdictional fact of a search being conducted prior to issue of notice under section 1....
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....ssessee and all proceedings connected with search need to be carried out within the framework of the provisions of the Act. In case of non-compliance to the provisions of the Act by the Authorised Officer, such searches are invalid and illegal. In the present case before us, no search was conducted against the assessee as the premises occupied by the assessee were not entered upon and searched by the Authorised Officer. Mere search of the premises owned by the assessee but rented to another concern does not by any implication prove the conduct of search against the assessee in view of the fact that the assessee was not available at the address searched upon. Mere mentioning of name in the panchnama does not lead to the conclusion that a valid search was conducted against the assessee. In the totality of circumstances, where no search has been conducted against the assessee there is no merit in the issue of notice under section 153A of the Income-tax Act under which the jurisdictional area of operation is six assessment years immediately preceding the assessment year relevant to the previous year, in which search was conducted. In case, no search is conducted against a person, the p....