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TMI Blog2012 (3) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... posed of by this consolidated order. 2. First we will deal with ITA No.504/Bang/2010 for the A.Y. 2004-05. In this appeal, the following grounds have been raised by the assessee: 1. The order of the learned authorities below in so far as it is against the appellant is opposed to Law, equity, weight of evidence, probabilities, facts and circumstance of the appellant's case. 2. The order of assessment passed under the provisions of section 143(3) r.w.s. 153A of the I.T. Act is bad in law, void ab initio and consequently the assessment requires to be cancelled. The order of assessment is without jurisdiction and not legally sustainable in law. The legal grounds are sub classified as under and each of the ground is without prejudice to the other. a) The Warrant of authorization being in the joint names of various persons including the appellant, the impugned assessment requires to be cancelled. b) The mandatory conditions for invoking the provisions of Section 153A did not exist and further the essential and mandatory conditions have not been complied with and consequently the assessment made is bad in law and liable to be cancelled. c) The proceedings of initiation and L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition is without any iota of evidence and is merely on suspicion and surmise and devoid of any legal or factual foundation. 7. Without prejudice, the authorities below, failed to appreciate that the full value of consideration as appearing in section 48 of the Income Tax Act cannot be construed as the market value but as the price bargained / transacted / transferred by the parties. 8. Without prejudice, the very issue of transfer of shares so effected by the appellant in the aforesaid companies had already been deliberated and assessed on the appellant in such scrutiny assessments completed prior to the search, and that certain additions so made then, on appeal, were deleted by the CIT(A) and had attained finality and the department had not pursued the same on second appeal. 9. The appellant denies himself liable to be charged to interest u/s 234 B and 234 C of the LT. Act and further the levy of the same are not in accordance to law. Furthermore, the levy is also bad in law as the additions made by the Assessing Officer are extremely debatable. Further no such levy is possible after an assessment u/s 143(3) on the very same issue following the parity of the ratio of the jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e warrant dated 2.2.2007 and the satisfaction note, giving the reasons recorded for issuance of the warrant u/s 132, were not furnished to the appellant nor his Group entities wherein it has not been possible for the appellant and his group entities to plead about and demonstrate the illegality of search before your Honour more effectively. 6. The ld. CIT(A) did not accept the contention of the assessee by observing as under: I. Section 132(1) of Income Tax Act 1961 provides that "Where the Director General or Director or the Chief Commissioner or Commissioner or any such Joint Director or Joint Commissioner as be empowered in this behalf by the Board, in consequence of information in his possession, has reason to believe that (a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922 (11 of 1922), or under sub-section (1) of section 131 of this Act, or a notice under sub-section (4) of section 22 of the Indian Income-tax Act, 1922, or under sub-section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in his possession, no question of validity of search can be raised before the Assessing officer or before the appellate authorities. This view has been affirmed by Delhi High Court in the case of Sri M B Lal Vs CIT 279 ITR 298, Hon'ble ITAT Special Bench in the case of C Ramaiah Vs ACIT (2003) 87 ITD 439 (Bang)(SB) and the ITAT Special Bench Delhi in the case of Promain Ltd Vs DCIT reported in 95 ITD 489. II. The Commissioner of Income Tax (Appeals) does not have any jurisdiction under section 246 A of the Income Tax Act 1961 to adjudicate on the reasons recorded by the competent authority for issue of authorisation under Section 132(1). The section 246A gives the list of the orders against which the appeal lies before the Commissioner of Income Tax (Appeals). III. In the Judgement of Ajit Jain (260 ITR 80) on which the reliance has been placed by the appellant is not of any help to the appellant. In the above case, Honourable Supreme Court affirmed that the judgement of Delhi High Court in Writ Petition No.3756 of 1997 in the case of Union of India Vs Ajit Jain which was reported in 242 ITR 302. In that case the Honourable Delhi High Court held that intimation simpliciter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be questioned before the assessing officer or the appellate authority. Once the search is initiated in the case of person, the proceeding under Section 153A has to be initiated which is clear from the plain reading of Section 153A of the Income Tax Act which is reproduced below :- "Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Anr. v.. UOI Ors. (2006) 282 ITR 273 (SC) 12. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is noticed from the record that the warrant of authorization dated 02.02.2007 was in the joint names of Divyashree Developers (P) Ltd., Chatur Realtors (P) Ltd., P. Shyamaraju, Umesh S. Raju, Bhaskar Raju and Smt. Arathi Raju. A copy of the said document i.e., warrant of authorisation dated 02.02.2007 is available at page No.3 of the assessee s paperbook, therefore there is no doubt to this fact that the warrant of authorization was in the joint names, but the assessment has been framed in the individual name of the assessee. On a similar issue, the Hon ble Allahabad High Court, Lucknow Bench in the case of CIT v. Smt. Vandana Verma [2011] 330 ITR 533 (All) has held as under: A warrant of authorization must be issued individually, if it is not issued individually, then the assessment cannot be made in an individual capacity. It has further been held that since the warrant of authorization had been issued in the joint names of MV and VV, who were husband and wife living toget ..... X X X X Extracts X X X X X X X X Extracts X X X X
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