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TMI Blog2008 (7) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... sed warrant issued by the Department before initiating search action under section 132. It was, therefore, prayed that the additional ground be admitted. In the opposition, the learned Departmental representative objected to the admission of the additional ground by submitting that it was not raised either before the Assessing Officer or before the learned Commissioner of Income-tax (Appeals) and hence, the Tribunal should desist from entertaining this ground. However, it was not disputed that the only additional evidence in support of the ground, being the warrant of authorisation was part of the file of the Revenue. We have heard the rival submissions and perused the material placed on record. From the ground, as extracted above, it is amply clear that it relates to a question of law as to whether the order passed by the Assessing Officer was barred by limitation or not. The hon' ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 has held that the additional ground on the question of law can be raised before the Tribunal for the first time provided no fresh material is required to be examined for its adjudication. The Madhya Pradesh Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 158BE(1)(b), it was stated that the order under section 158BC could have been passed within two years from the end of the month in which last of the authorisations for search under section 132 was executed. He also invited our attention towards the Departmental paper book filed in the case of Shri M. K. Shah and Shri Rajiv Shah, etc., who are the directors of the assessee-company. By referring to page 3 of the said paper book, which is annexure-4A, it was contended that the Department had itself accepted that the search warrant No. 12722 was issued in the name of the present assessee as well on August 7, 1998, and the search which commenced on August 10, 1998, was finally concluded on September 9, 1998. It was submitted that the time period of two years as per section 158BE(1) has to be reckoned from September 30, 1998 and going by that prescription, the maximum time limit within which the assessment order could have been passed was September 30, 2000. The assessment order having been actually passed by the Assessing Officer on February 28, 2002, was stated to be barred by limitation. He further placed on record a copy of warrant of authorisation in Form N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was stated that the assessment made under section 158BD read with section 158BC in the instant case be also held as valid and the additional ground raised on behalf of the assessee be repelled. In the rejoinder, learned counsel for the assessee contended that in the cases of Shri Rajiv M. Shah and Smt. Seema Rajiv Shah, the directors of the assessee-company, the Tribunal got convinced with the assessee' s plea about the time barring assessment having been made in their cases on the same pattern and the matter was sent back to the learned Commissioner of Income-tax (Appeals) for deciding afresh as the ground in this regard was raised before it for the first time. Referring to the consequential orders passed by the learned first appellate authority on June 24, 2008, it was stated that the assessee' s contention on the limitation aspect has been accepted and the assessments have been quashed. He submitted that similar facts prevail in the instant case also. We have considered the rival submissions at length in the light of material placed before us and precedents cited at the Bar. The short controversy before us is to decide whether the assessment order passed is barred by limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to the relevant provisions. It, is therefore, discernible that the search action is largely bifurcated into two stages, viz., the initiation of search and the conduct of actual search. The first stage sets the process of search into motion. The warrant of authorisation lays the foundation for erection of the edifice of proceedings under section 132 and the process of initiation of search commences with its signing. It is one of the preliminary acts in the series of acts in the initiation of main action. Therefore, the search initiates on the issuance of the warrant of authorisation. The argument on behalf of the Revenue that the search action commences with its actual conduct by visiting the premises of the assessee and the warrant of authorisation is immaterial, in our considered opinion, is sans merits. The process of search, in fact, commences when a valid warrant of authorisation is signed. Our view accords with the order passed by the Jodhpur bench of the Tribunal in the case of Suraj Prakash Soni v. Asst. CIT [2008] 303 ITR (AT) 366 (Jd) ; [2007] 106 ITD 321 (Jd) one of us, namely, the Accountant Member is party to that order. The second stage is the execution of search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there remains no doubt whatsoever that the assessee was subjected to search under section 132. The learned Departmental representative unsuccessfully tried to point out that the address of the assessee was not mentioned in the warrant of authorization. Here, again, we find that the address has been given in it as " II and III floor, Ida Mansion, 18 Vaju Kotak Marg, Ballard Estate, Mumbai-400 038" . The assessee is carrying on its business at this very address at 2nd floor, as has been mentioned in the titles of the assessment order. We, therefore, do not approve the endeavour of the learned Departmental representative in trying to distinguish between two locations, i.e., 23 and 27 Ida Mansion, 2nd floor to make his submission that the assessee was carrying on business at 27, Ida Mansion and the panchnama mentioned the address as 23, Ida Mansion. Primarily, we note that the warrant of the authorisation contains the address as 2nd and 3rd floor without reference to any particular number on that floor, be it 23 or 27. Secondly, the panchnama contains the address as 23rd Ida Mansion and the Assessing Officer himself has given the same address of the assessee. Not only that, the annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken only pursuant to the warrant of authorisation. If the contention of the learned Departmental representative in not verifying the warrant of authorisation to see the name of the assessee in it is taken to the logical conclusion, it would tie the hands of the Tribunal from cancelling the block assessments where the search is carried out without any warrant of authorisation. This cannot be the essence of any order. In the judicial hierarchy, orders of the lower authorities are subject to examination by the higher authorities. If such a situation as contemplated by the learned Departmental representative is allowed to prevail, it would lead to chaos. Be that as it may, it is patent from the warrant of authorization that the assessee was subjected to search action under section 132 and the genuineness of this document has not been disputed by the learned Departmental representative. To sum up we hold that the assessee in question was also subjected to search under section 132 and accordingly, the time limit as prescribed under section 158BE(1) would apply. Going by that, the assessment order passed on February 28, 2002, is barred by limitation as the maximum time available to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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