2018 (12) TMI 321 - AT - Income Tax

Assessment u/s 153A - Disallowance of bogus purchases - no search warrant issued - Held that - In the absence of search warrant and copy of Panchanama in the case of the assessee and in view of the contradictory findings by the Assessing Officer that there is a survey in the case of the assessee and there is a search in the case of assessee and there is search in the case of M/s. Kores Group, we hold that there was only survey proceedings carried out in the case of the assessee u/s. 133A and statements were also recorded on oath during the survey proceedings. In the course of survey in the premises of assessee at Goa inward raw material registers belonging to the assessee were impounded u/s. 131 of the Act on 19.09.2016 as observed by the Assessing Officer at Para No.5 and the purchases were treated as inflated and bogus only based on these impounded materials in the course of survey. It is clear that when there is no search warrant issued there cannot be an assessment u/s. 158BC/153A of the Act. On a reading of the Assessment Order passed u/s. 143(3) r.w.s. 153A of the Act in assessee s case, we find that there are contradictory findings regarding the action taken by the Revenue i.e. Survey and Search, and further in the absence of any documentary proof submitted by the Revenue to prove that the search warrant was issued in the name of the assessee the assessment made u/s. 143(3) r.w.s. 153A is bad in law and void ab-initio. - Decided in favour of assessee.

Summary

Issues Involved:
1. Jurisdiction of the Assessing Officer in passing the order under section 143(3) read with section 153A.
2. Disallowance of bogus purchases.
3. Confirmation of disallowance of employees' contribution to PF and ESI under section 2(24)(x) read with section 36(1)(va).

Issue-wise Detailed Analysis:

1. Jurisdiction of the Assessing Officer:
The primary issue was whether the Assessing Officer (AO) had the jurisdiction to pass the order under section 143(3) read with section 153A. The assessee argued that the AO's jurisdiction was invalid as there was no search warrant issued in the name of the assessee, only a survey under section 133A was conducted at the business premises in Goa. The Tribunal noted contradictory findings by the AO, who mentioned both a search and a survey. Despite multiple opportunities, the Revenue failed to produce a search warrant or Panchanama to substantiate the claim of a search. Citing various judicial precedents, including CIT v. Ramesh D. Patil and CIT v. Jolly Fantasy World Ltd, the Tribunal concluded that in the absence of a search warrant, the assessment under section 153A was invalid and void ab-initio. Consequently, the assessments for the years 2002-03 to 2007-08 were quashed.

2. Disallowance of Bogus Purchases:
The AO disallowed purchases made from M/s. Vertex Chemicals, deeming them bogus based on interpolated entries in the inward registers and lack of transportation details. The assessee contended that the purchases were genuine, supported by statements from the vendor and internal records. The CIT(A) partially upheld the AO's findings but directed that only the interpolated entries without transportation details should be disallowed. The Tribunal, having quashed the assessments on jurisdictional grounds, did not delve further into the merits of the disallowance of bogus purchases.

3. Confirmation of Disallowance of Employees' Contribution to PF and ESI:
The assessee raised an additional ground regarding the disallowance of employees' contributions to PF and ESI under section 2(24)(x) read with section 36(1)(va). However, since the Tribunal quashed the assessments on jurisdictional grounds, this issue became moot and was not addressed separately.

Conclusion:
The Tribunal quashed the assessments made under section 143(3) read with section 153A for the assessment years 2002-03 to 2007-08 due to the lack of a search warrant, rendering the assessments invalid and void ab-initio. Consequently, other grounds raised by the assessee, including the disallowance of bogus purchases and employees' contributions to PF and ESI, were rendered infructuous. Appeals against the consequential orders were also dismissed as infructuous. The order was pronounced in the open court on November 30, 2018.