9911796707
TMI Blog2012 (5) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... .11/Bang/2008. In this appeal, the assessee has raised the following grounds:- "1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the appellant's case. 2. The order of block assessment passed by the learned A.O. is bad in law, in as much as the search itself is illegal, as the conditions specified u/s. 132[1][a] and [b] did not exist and in so far as the condition u/s. 132[1][c] is concerned, there was no material inducing the reason to believe that, the appellant was in possession of any money or other asset which the appellant has not or would not disclose for the purposes of Income-tax Act to enable the Authorising Officer to issue the warrant and consequently, the block assessment requires to be annulled. The ration of the decision of the Hon'ble Supreme Court in AJIT JAIN reported in 260 ITR 80 is relied upon. 3. [A] Without prejudice to the above, the income is excessive and liable to be reduced substantially, as ultimately what was found as ascribed to appellant was cash of Rs.1,00,000/-, investment in machinery of Rs.4,60,710/- and gold jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1156 to 1159/Bang/2010 29.03.11." It is also stated that no fresh facts are required to be investigated because all the facts are already available on record of the department. A request had been made for admission of additional ground. Reliance was placed on the judgment of Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC). The assessee requested to admit the legal ground and states in the written submission as under:- "1. The appellant begs to submit the under mentioned additional grounds of appeal, which were not specifically urged in the original grounds of appeal filed at the time of institution of appeal, although the validity of the search was urged. The copies of the warrant were not given after search. Later, the Department filed the copies of the warrants of search in response to the direction of the Hon'ble Bench and repelling and distinguishing the decision cited of the decision of the Hon'ble ITAT, Chennai Bench in the case of ANJUGA CHIT FUNDS P. LTD. Reported in 113 ITD 67, a submission was made by the memo filed in writing dated 27/10/2009 in which relying upon the decision in the case of SRI GURU CHARAN SINGH in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now enclosed herewith as Annexure-1. 3. The Hon'ble ITAT noticing the aforesaid decision of the Hon'ble High Court in the case of SRI P.J. KUMAR and OTHERS in ITA Nos. 6005 and 6006/2010, cancelled the assessment made in the case of one SRI CHANDRA REDDY in ITA Nos.1156 to 1159/Bang/2010 dated 29/03/2011 [copy enclosed as Annexure- 2], pursuant to a joint warrant. 4. Since the matter was being adjourned from time to time awaiting the order in the case of C. Ramaiah Reddy [supra], it did not occur to my representative to specifically file this legal ground due to shear inadvertence as and when the matter came up for hearing and was being adjourned and this morning when the matter came up for hearing again, the Hon'ble Bench pointed out that specific legal ground had not been urged. After noticing the inadvertence lapse, the appellant has been advised by the learned Authorised Representative to file this additional ground, which may kindly be admitted and disposed off on merits for the advancement of substantial cause of justice having regard to the ratio of the Hon'ble Supreme Court in 229 ITR 383 and Karnataka High Court in 70 ITR 70." The Relevant facts for appreciation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratio laid down by the Hon'ble Supreme Court in the aforesaid referred to case, the additional ground raised by the assessee is admitted. 7. The facts of the case in brief are that the assessee is running a diagnostic centre known as 'Kannan Diagnostic Centre' in the premises wherein 'Kannan Pathology Laboratory' is also functioning. In the said diagnostic centre, the assessee is running his X-ray and scanning centre. In this case, search u/s. 132 of the Income-tax Act, 1961 [hereinafter referred to as "the Act" in short"] was conducted on 8.8.2002 in the business and residential premises of the assessee. During the course of search proceedings, cash, registers pertaining to X-ray and scanning, bill nooks, jewelry items, etc., were found and seized. The Assessing Officer issued notice dated 31.12.2002 u/s. 158BC, in response to that the assessee filed his block return of income on 31.12.2002 declaring an undisclosed income of Rs.55,79,710. However, the assessment was farmed at an income of Rs.84,48,750 vide order dated 31.08.2004. Aggrieved, the assessee carried the matter to the ld. CIT(Appeals) and challenged the validity of search and also contested the additions made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "A warrant of authorization must be issued individually, if it is not issued invididually, 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 together in a single premises, it was not open for the assessing authority to assess VV alone on the basis of the assets and documents seized during the course of search by invoking the provisions of Chapter XIV-B in an individual capacity." 11. Similarly, the Hon'ble jurisdictional High Court in the case of CIT v. P.J. Kumar (supra) has held that:- "It is settled law that the search to be conducted should be strictly in accordance with law. If an authorization is issued in the name of two persons and if block assessment order to be passed, it should be passed in the name of two persons. If the order is passed in the name of an individual and not in respect of both the persons mentioned in the authorisation, on the face of it the proceedings initiated and the assessment order passed is illegal." 12. In the present case also, no individual warrant of authorisation was is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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