TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 1293
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....s. 153A of the Act without any valid search on the premises of the appellant and the purported conclusion reached on that behalf is completely unfounded, unlawful and untenable in law." 03. The ld. Counsel for the assessee vehemently submitted before us that the assessment has been framed by the ld. AO u/s 153A read with section 143(3) of the Income-tax Act, 1961 (the Act) vide order dated 31.12.2017 by making an addition of Rs.1,22,50,000/- on account of unexplained credit and Rs.11,85,000/- on account of unexplained expenditure after a search u/s 132 of the Act was conducted on 01.12.2015 on the assessee. The ld. Counsel for the assessee submitted that the search was never conducted on the assessee's premises at 81, G.T. Road, Asansol, West Bengal-713301, India. The ld. Counsel for the assessee submitted that the search was only conducted in Kolkata that too on the premises which were not belonging to assessee nor assessee was carrying on any business therefrom. It was also submitted that assessee was not having any office or registered office or corporate office in the premises searched at Kolkata and in fact the premises belonged to other group concerns of the assessee. The ....
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....he search team. We note that the Kolkata premises were not belonging to the assessee. We further note that the name of the assessee was mentioned in Panchanama but no search was conducted at the given place at Asansol. Therefore, we find merit in the case of the assessee that there is no search on the premises of the assessee and the wrongly framed the assessment u/s 143(3) read with section 153A of the Act. We further find that the case is squarely covered by the decision of the co-ordinate bench in case of Room Alankar Vs. DCIT (supra), wherein similar issue has been decided by the co-ordinate Bench in the case of the assessee. The operative part of the said decision is extracted below: - "7. The Ld. DR, on the other hand, strongly objected to the arguments presented by the Ld. AR by submitting that the search operation was conducted on the entire group and the premises belonging to the partners were searched and he duly admitted during interrogation that he was executing business on behalf of the group companies. The Ld. DR admitted that no search was conducted at the premises of the assessee at Asansol. However a survey was conducted and some records were impounded. Th....
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....ec. 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). The relevant part of the order of the Coordinate Bench is extracted as under: "20. The perusal of the section reveals that in case a person against whom search is initiated under section 132 of the Act or books of account or other document are requisitioned under section 132A of the Act, then notwithstanding anything contained in sections 139, 147, 148, 149, 151 & 153 of the Income-tax Act, the Assessing Officer shall issue a notice to such a person requiring him to furnish Returns of Income in respect of six assessment years preceding the assessment year relevant to the previous year in which such search was conducted or requisition made. Section 153A of the Act thus talks of two steps i.e., (i) initiation of search and (ii) conduct of search. The question of validity of search i.e., the satisfaction recorded before issue of search warrant cannot be looked into by the Tribunal as held by the Hon'ble Delhi High Court in M.B. Lal v. CIT [2005] 279 ITR 2981. Thus, in the facts of the present case, where the Pan....
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....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 158BC of the Act need to be satisfied. The Special Bench of Bangalore Tribunal in C. Ramaiah Reddy v. Asstt. CIT (Inv.) [2004] 268 ITR (AT) 491 held as under: ". . . . . . . .The Income-tax Appellate Tribunal need be satisfied only about the validity of the search under section 132 based on valid authorization. The jurisdictional fact that needs to be satisfied before the Assessing Officer can issue notice under section 158BC is that a search under section 132 should have been conducted on the assessee. The Income-tax Appellate Tribunal, therefore, needs to satisfy itself that a search was indeed conducted with reference to the assessee in question. The search should not merely have been initiated, butconducted. Hence, the income-tax appellate Tribunal is required to verify whether the jurisdictional facts exist before notice can be issued under section 158BC." 23. The Tribunal though cannot determine the Propriety of search but the Tribunal has the inherent power to verify that there was a search on the....
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....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 period of operation to which the provisions of section 153A would apply, cannot be determined and the invoking of provisions of section 153A of the Act is baseless. Though the provisions of section 158BC of the Act are not applicable to searches conducted after 31-5-2003, but the provisions of section 132 of the Income-tax Act are continuing on the statute implying thereby that the provisions of section 153A of the Act are only applicable in case valid search is conducted against the assessee under section 132 of the Act. Accordingly, we declare the assessments made against the assessee under the provisions of section 143(3) read with section 153A of the Income-tax Act are null and void and direct the Assessing Officer to cancel the same. Thus, the issue related to the validity of search raised by the assessee is allowed."" 9. We also note that the above decision of the coordinate bench has been confirmed by the Hon'ble Bombay High Court vide order dated 29.09.2009 passed in CIT Vs. J. M. Trading Corpn. In ITA N....