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TMI Blog2011 (3) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee and the assessee is entitled to get the reliefs as sought for herein - Decided in the favour of the assessee - 25078 of 2005 - - - Dated:- 4-3-2011 - MS. JUSTICE K.B.K.VASUKI, JJ. For Petitioner : Mr.K.Ravi. for Mr.P.J.Rishikesh. For Respondents : Mr.J.Naresh Kumar O R D E R The Writ Petition is filed against the order of the first respondent dated 30.6.2005 in No.761R/ADXPRT7428R in respect of the block Assessment Years 1997-98 to 2002-03 and part of 2003-04, to quash the same and to consequently direct the respondents to drop the proceedings initiated against the petitioner for the block period. 2. The brief facts which are relevant for consideration herein are as follows: The petitioner is engaged in the business of financing and he is assessed to Income Tax regularly. While so the department held search in the residential and official premises of the petitioner on 27.03.2003 and 28.03.2003 respectively on the strength of individual warrant of authorisations of even dated 26.03.2003 and in the course of such search documents reported to be incriminating in nature are found and few are seized and others not seized and at the end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above referred to in M/s.Standard Chartered Bank is removed on 09.04.2003 and 10.04.2003. Thereafter the assessee was issued notice for the assessment enquiry on 27.11.2003 and the assessee filed his reply on 14.09.2004 and he was issued with the questionnaire and in response to the hearing notice, the assessee furnished details as called for through his representative and the department has, after verifying all the documents and the reply given by the assessee through his representative, completed the assessment and passed the block assessment order on 30.06.2005. Aggrieved against the same, the petitioner filed statutory appeal before CIT (appeal). The petitioner has also come forward with this writ petition thereby questioning the validity of the block assessment order mainly on the ground that the same, having been passed beyond two years from end of the month in which the last of authorisation is executed, is barred by limitation and is without jurisdiction. 4. It is contended by the learned counsel for the petitioner that as per section 158BE of Income Tax Act, time limit for completion of block assessment order is two years from the end of the month in which is the execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nama dated 17.06.2003, 12.06.2003 and 14.06.2003, cannot be treated as last panchanama for the purpose of ascertaining the date of conclusion of the search to reckon two years period for block assessment. 6. Such contention of the petitioner is seriously disputed on the side of the revenue both legally and factually and the legal objection raised is that the petitioner is not entitled to maintain two parallel proceedings one statutory against the assessment and another by way of writ petition against the validity of search and seizure. Factually it is contended that the delay in lifting the Prohibitory Orders dated 27.03.2003 and 28.03.2003 is only at the instance of the petitioner who requested to postpone the proceedings due to his convenience and the search held on 28.03.2003 in the bank premises is in pursuance of post search investigation leading to information of availability of FD, RBI relief funds and IDBI funds to the tune of Rs.95,00,000/- in the Standard Chartered bank, as such the search and seizure held on 28.08.2003 is in continuation of the search commenced on 26.03.2003 and as the conclusion of the search is on 28.08.2003, the block assessment order passed on 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side of the revenue observed that two parallel remedies could not be pursued by the petitioner at one and the same time. Though this court is bound by the law laid down by Apex Court, the observations of Division Bench of our High Court and other High Courts as cited by the petitioner is more applicable to the facts of the present case for the following reasons. The Apex Court has in the judgment not gone into the question whether the High Court can exercise its jurisdiction under Article 226 Constitution of India under the circumstances as discussed in the judgment of our High Court and other High Courts. In the case decided by the Supreme Court no issue regarding want of jurisdiction or statutory bar is raised as such the Apex Court is of the view that the petitioner cannot be permitted to resort to two parallel proceedings at one and the same time. Our High Court and other High Courts have in the authorities cited on the side of the petitioner dealt with identical circumstances and decided the maintainability of the writ petition in favour of the writ petitioner. Applying the same ratio and by considering the different ground on which the block assessment order is challenged be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties herein is as to which is the last panchanama. While it is the case of the petitioner, the last of panachanamas are dated 27.03.2003 and 28.03.2003, according to the respondent, it is dated 28.08.2003 on the basis of the grounds as already referred to in the foregoing paragraphs. This court is on the basis of the available records inclined to reject the stand of the department that the last panchanama is the one dated 28.08.2003 and the date of conclusion of the search is 28.08.2003 as recorded in the same. It is to be concluded so mainly on the basis of the report recorded by the searching party in that panchanama dated 17.06.2003 in respect of residential premises and the panchanamas dated 12.06.2003 and 14.06.2003 in respect of business premises. It is definitely recorded in the panchanamas that search in respect of both residential and business premises is finally concluded on 17.06.2003 and 14.06.2003. If that is so, the search held on 28.08.2003 in the premises of Standard Chartered bank is to be necessarily treated as fresh search held on the strength of fresh warrant authorisation. The Division Bench of Delhi High Court in the unreported judgment in Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is postponed only at the instance of the petitioner for his own convenience and the time limit prescribed under section 132-8A is only directory and not mandatory. It is further argued by the learned counsel for the respondents, that the Prohibitory Orders passed on 27.03.2003 and 28.03.2003 are not under section 132(3) but only under Section 132(1) and the time limit prescribed under section 132-8A is hence inapplicable to the same. In my considered view, the contentions so raised have no legal or factual basis. It is noteworthy to mention that the provision of law referred to in the Prohibitory Orders is section 132(3) of the Act and the contents of the wooden alamirah and steel cabinet which are the subject matter of Prohibitory Orders are not such in its volume, weight or other physical characteristics and not such dangerous in nature that it is not possible or practicable to take physical possession of the same and to remove it from the said place. Once the Prohibitory Orders above referred to are to be treated as the orders passed under section 132(3), the same shall have no force beyond 60 days and no authority is vested upon the officials concerned to extend the same b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds from the bank on 28.08.2003 is not in pursuance of any search, as such the panchanama dated 28.08.2003 cannot be hence treated as the last panchanama evidencing any search. Viewing from any angle, the conclusion of actual search is on 27.03.2003 and 28.03.2003 in both the premises of the assessee respectively and the same is the date to be reckoned as the date of execution of the last of warrant of authorisations. Therefore, the limitation for completing block assessment order would end on 30.03.2005 being two years from the end of month in which the search was concluded and the impugned assessment order dated 30.06.2005 is hopelessly barred by limitation. 17.The conclusion so arrived at by this court is also supported by the decisions of Delhi and Bombay High Court and Income Tax tribunals of different states in the following judgments (i) (2007) 106 ITD 569 Bangalore in DTS.Rao V. Assistant Commissioner of Income Tax, Investigation Circle-II, Mysore; (ii) (2008) 115 ITD 1 Mumbai in Nandlal M.Gandhi V. Assistant Commissioner of Income Tax, Circle-26(3), Mumbai; (iii) (2007) 290 ITR (AT) 128 Delhi Sarb Consulate Marine Products Private Ltd., V. Assistant Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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