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2007 (2) TMI 170 - MADHYA PRADESH HIGH COURTValidity of search and seizure operation u/s 132(1) - Assessment u/s 158BC - Whether the validity of a requisition u/s 132A in pursuance of an authorisation issued under that section can be decided by the Tribunal in an appeal before it u/s 254 ? - HELD THAT:- In our considered opinion, the jurisdiction exercised by the statutory authority while hearing the appeal cannot enter into the justifiability of an action u/s 132A of the Act. To elaborate: whether the order passed by the Commissioner is without jurisdiction or not cannot be the subject-matter of assessment as the same does not arise in the course of assessment. Therefore, neither the Assessing Officer nor the appellate authority can dwell upon the said facet. We may note with profit, it would not be a jurisdictional fact within the parameters of assessment proceeding or an appeal arising therefrom. It can only partake of the nature and character of adjudicatory fact to the limited extent whether such search and seizure had taken place and what has been found during the search and seizure. The validity of search and seizure, in our considered opinion, is neither jurisdictional fact nor adjudicatory fact and, therefore, the same cannot be dwelled upon or delved into in an appeal. The submission of Mr. Nema that the Tribunal having been constituted under article 323 of the Constitution can delve into, we are disposed to think, is an unacceptable proposition in law especially in the teeth of the provision contained under section 253 of the Act. Consequently, we conclude and hold that the appeal is sans merit and accordingly stands dismissed without any order as to costs.
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