2011 (9) TMI 802 - HC - Income Tax

Validity of search and seizure - decline by Tribunal to go into question of validity of search - restoration of file to AO - Held that - Tribunal has got powers to look into all aspects of search and a valid search is sine qua non for initiating block assessment. Therefore, refusal on the part of the Tribunal to go into the validity of search which is sine qua non, is illegal and therefore requires to be set aside. Therefore, entire matter is remanded back to the Tribunal for fresh consideration.

Summary

Issues:
1. Validity of search conducted under Section 132 of the Income Tax Act, 1961.
2. Assessment of properties post oral partition under Hindu Law.
3. Jurisdiction of the Tribunal to review the validity of search and assessment on merits.

Issue 1: Validity of Search under Section 132:
The case involved a search conducted under Section 132 of the Income Tax Act, 1961, on the assessee and her sons. The contention was that the search was invalid as it lacked a valid authorization and the satisfaction required by law. The authorisation was issued in favor of multiple individuals, which was argued to be impermissible. The assessment order under Section 153A was challenged as being without jurisdiction due to the alleged invalidity of the search. The Tribunal, relying on a previous judgment, declined to review the validity of the search. However, the High Court held that a valid search is essential for block assessment proceedings, overturning the Tribunal's decision on this issue.

Issue 2: Assessment of Properties Post Oral Partition:
The dispute also revolved around the assessment of properties post oral partition under Hindu Law. The family had undergone oral partitions on different dates, and the properties were claimed to have become the exclusive properties of the respective members post-partition. The argument was that these properties should be assessed only in the hands of the individuals to whom they had fallen post-partition, rather than as Hindu Undivided Family property. The Tribunal directed a re-assessment to determine the nature of the properties post-partition and their subsequent sale. The High Court agreed that the properties post-partition should be assessed in the hands of the individuals to whom they had fallen, emphasizing the importance of ascertaining the properties' status at the time of sale.

Issue 3: Tribunal's Jurisdiction to Review Validity and Merits:
The final issue involved the Tribunal's jurisdiction to review both the validity of the search and the assessment on merits. The Tribunal had declined to review the search's validity but had directed a re-assessment on merits. The High Court, citing a previous judgment, held that the Tribunal indeed had the power to review all aspects of the search. It emphasized the necessity of a valid search for block assessment and overturned the Tribunal's decision on this matter. The High Court also stressed the importance of thoroughly examining the properties' status post-partition and their subsequent ownership before finalizing the assessment.

In conclusion, the High Court partially allowed the appeals, fully allowed the cross-appeals, set aside the Tribunal's order, and remanded the entire matter back to the Tribunal for fresh consideration. It kept all contentions open for further review and directed each party to bear their own costs.