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2018 (2) TMI 111 - HC - Income TaxValidity of search and seizure operation u/s 132(1) - whether authorization, search and seizure and subsequent proceedings all relate to assessee or not? - assessment under Section 158BC - Held that - Tribunal has not examined sufficiency of material on which authorization under Section 132(1) was issued by competent authority but has examined identity of person in respect of whom authorization was issued under Section 132 (1) and search and seizure operations were carried on. Had it been a different person, and there would have been another person in the same premises with the title mentioned in the authorization and also in panchnama and material seized also would not have been belonged to Assessee, in our view, difference of identity in that case would have been sufficient to vitiate entire proceedings. On the contrary factum that search and seizure was at the premises of Assessee and material also belonged to Assessee was not disputed. It is in these facts and circumstances, we find that proven facts and truth is that search was actually conducted at the premises belong to Assessee i.e. M/s. Verma Roadways , documents etc. were seized from its premises and when Assessee was called upon to explain, he gave various reasons and explanations without raising any dispute that there was no warrant of search validly issued in its respect and therefore, it was not liable to respond to any notice issued under Section 158 BC. Thus we find it difficult to hold that in the present case mention of different title in authorization and panchnama would be sufficent to hold that proceedings under Section 132(1) were conducted against different person and not Assessee. That being so proceedings under Section 158BC against Assessee also cannot be held bad. Search and seizure operations must be held to have been conducted against Assessee and, therefore, on the basis of material collected in search and seizure operations, ACIT/AA was justified in proceeding to make assessment under Section 158BC. - Decided against assessee.
Issues Involved:
1. Validity of authorization for search under section 132. 2. Validity of notice issued under section 158 BC. 3. Specificity of status and basis in the notice. 4. Mention of incorrect block period in the notice. 5. Proper application of mind by the Commissioner. 6. Validity of the addition of ?10,50,000/- for investment in trucks. 7. Jurisdiction of the Tribunal to examine the validity of search proceedings. 8. Tribunal's decision to remand the assessment instead of quashing it. 9. Tribunal's finding on the ?65,59,302/- belonging to Rameshwar Dayal Shiksha Samiti. Detailed Analysis: 1. Validity of Authorization for Search under Section 132: The Tribunal held that the authorization for search was invalid as the warrant was issued in the name of "M/s. Verma Transport Company" and "Lucknow Banda Transport Company" instead of the assessee, "M/s. Verma Roadways." The Tribunal concluded that there was no valid search under Section 132(1) of the Income Tax Act, 1961, at the premises of the assessee. However, the High Court found that the search was conducted at the premises of the assessee, and the material seized belonged to the assessee, thus validating the search. 2. Validity of Notice Issued under Section 158 BC: The Tribunal found the notice dated 8.5.1997 issued under Section 158 BC to be invalid due to the lack of a valid authorization for the search, the absence of necessary information, failure to specify the status of the assessee, and incorrect block period mentioned. The High Court, however, held that the search and seizure were conducted at the premises of the assessee, and the material seized belonged to the assessee, thus validating the notice. 3. Specificity of Status and Basis in the Notice: The Tribunal observed that the notice did not specify the status of the assessee or whether it was issued on the basis of search or requisition, leading to its invalidation. The High Court did not specifically address this point but implied that the notice was valid as the search was conducted at the premises of the assessee. 4. Mention of Incorrect Block Period in the Notice: The Tribunal noted that the notice mentioned the block period as 1.4.1986 to 28.12.1996, while the assessment was for the period 1.4.1994 to 28.11.1996, rendering the notice invalid. The High Court did not specifically address this discrepancy but upheld the validity of the notice based on the overall context of the search and seizure. 5. Proper Application of Mind by the Commissioner: The Tribunal found that the Commissioner did not properly apply his mind before granting approval for the assessment under Section 158 BC. The High Court disagreed, stating that the search and seizure were conducted at the premises of the assessee, and the material seized belonged to the assessee, thus validating the Commissioner's approval. 6. Validity of the Addition of ?10,50,000/- for Investment in Trucks: The Tribunal held that the addition of ?10,50,000/- on account of investment in trucks could not be made under Sections 158 BA and 158 BB. The High Court did not specifically address this issue but implied that the assessment was valid based on the search and seizure. 7. Jurisdiction of the Tribunal to Examine the Validity of Search Proceedings: The Tribunal held that it had the jurisdiction to examine the validity of the search proceedings. The High Court, however, ruled that the Tribunal could not question the validity of the search and seizure proceedings and that such issues should be raised in a writ petition. 8. Tribunal's Decision to Remand the Assessment Instead of Quashing It: The assessee argued that the Tribunal should have quashed the assessment instead of remanding it. The High Court did not specifically address this issue but upheld the validity of the assessment. 9. Tribunal's Finding on the ?65,59,302/- Belonging to Rameshwar Dayal Shiksha Samiti: The Tribunal found that the assessee failed to establish that the amount of ?65,59,302/- belonged to Rameshwar Dayal Shiksha Samiti. The High Court did not specifically address this issue but implied that the assessment was valid based on the search and seizure. Conclusion: The High Court allowed the Revenue's appeal and dismissed the assessee's appeal, setting aside the Tribunal's judgment and restoring the judgment of the CIT(A). The High Court held that the search and seizure were conducted at the premises of the assessee, and the material seized belonged to the assessee, thus validating the entire assessment proceedings.
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