9911796707
TMI Blog2012 (5) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention - Merely stating that the papers etc. do not pertain to the assessee and the contents of the document cannot be utilized do not lead to conclusion against block assessment order - remit back to Tribunal to discuss and examine the matter afresh and decide the factual matrix in detail – in favour of revenue. - ITA 308/2007 - - - Dated:- 30-4-2012 - MR. JUSTICE SANJIV KHANNA, MR. JUSTICE R.V. EASWAR, JJ. For Appellant: Ms. Rashmi Chopra, sr. standing counsel For Respondent: Mr. Salil Aggarwal, Adv. SANJIV KHANNA, J: (ORAL) Having heard counsel for the parties, we frame the following two substantial questions of law : (1) Whether the Income Tax Appellate Tribunal was right in recording that the name of the respondent-assessee Promain Ltd. was not mentioned in the warrant of authorization issued under Section 132 of the Income Tax Act, 1961 read with Rule 112(2)(a) of the Income Tax Rules, 1962? (2) Whether the Income Tax Appellate Tribunal was right in recording the finding that no addition could have been made in the block assessment proceedings as the Assessing Officer has not relied upon any material collected/seized during the course of sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Commercial Co.; and Cynedes Chemicals Ltd. 12. She also produced copy of panchnama which mentions as under: (1)General Engineering Works; (2)Jai Commercial Co.; (3)Cynedes Chemicals Ltd.; and (4)Promain Ltd. 13. A copy of this panchnama has been kept on record. It may be observed that in clause 6 of the panchnama it is mentioned that statements of Shri R.P. Modi, A.K. Mehta, S.K. Gupta and Shri H.K. Aggarwal and Joti Massani etc. were recorded in the course of search by the authorized officer. A copy of panchnama had also been received and signatures of receipts are appearing on the last page. 14. From the above facts and documents produced before the Bench and back ground of the case it is clear that despite direction by the Bench the Department has not been able to produce any authorization for conducting search specifically in the name of the assessee. On perusal of panchnama also it is not clear that it was received by any authorized person on behalf of the assessee. Merely because panchnama mentions the name of the assessee also it is not proved that warrant of authorization was also issued in the name of the assessee until and unless such warrant of autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and mentioned on the first page. 8. Ld. counsel appearing for the respondent-assessee however submits that the appellant-Revenue should have preferred an application for rectification under Section 254(2) and the Tribunal could not have made an error of the nature mentioned in the order. He however admits that the counsel for the assessee had not seen warrants of authorization, when they were produced before the Tribunal as it was not shown. He also accepts the position that there cannot be more than one warrant of authorization. We also notice that in the Panchnama, the name of the respondent-assessee is clearly mentioned and the documents which were seized have also been stated and give numbers. Ld. counsel for the respondent-assessee has admitted before us that this plea and objection was not taken before the Assessing Officer in the block assessment proceedings. 9. Counsel for the respondent-assessee has drawn our attention to the order dated 4.1.2012 passed by us. For the sake of convenience we are reproducing the said order as under: Learned counsel for the petitioner seeks and is granted permission to file photocopy of the warrant of authorization as well as panchnama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id hearing, the original warrant of authorization was shown, to the court and then notice was issued. 12. In view of the aforesaid findings and we hold that the Tribunal had recorded a wrong factual finding and incorrectly observed and held that the warrant of authorization did not include the name of the respondent-assessee. The respondent-assessee was searched. The first substantial question of law mentioned above is answered in negative i.e. in favour of the Revenue and against the respondent-assessee. 13. In respect of the second question, the factual findings recorded by the Tribunal read as under: 21. We have carefully considered the entire material on record and the rival submissions. In the assessment order the AO has not pointed out any specific material on the basis of which the additions have been worked out or determined. The assessment has been framed as if it is a case of reassessment. It may be pointed out that the assessee had already furnished entire relevant information including the books of account which were examined while completing the assessment in the case of the assessee u/s 143(3) for the assessment years 1993-94 and 1994-95 and therefore the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Lodha and V C Mehta. The assessment order relies on enquiries conducted following the search operations and statement of bank accounts etc. It is further stated that no evidence was produced by Rahul and Company regarding the physical delivery of units of mutual funds/shares and the books of accounts of Rahul and Company did not record the sale transactions etc. 15. What is noticeable from the reasons/finding given by the Tribunal is that they have not specifically referred to and dealt with the observations and findings given by the Assessing Officer. Some general observations have been made by the Tribunal to hold that none of the documents or seized material pertain to the respondent-assessee. These findings, however, do not deal with the observations and findings of the Assessing Officer which are detailed, specific and to the contrary. The Assessing Officer, as noticed above, has referred to several factual aspects, documents, account statements, oral statements etc. in support of the contention of the Revenue. The Tribunal is required to deal with the factual findings recorded by the Assessing Officer and, then after examining the document and evidence, give and record t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
