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TMI Blog2014 (2) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... Department along with a copy of FIR and statement of Shri P.N. Sanyal. In the statement, the assessee had submitted that he was acting as a commission agent and the recovered money in his possession was out of that income. Moreover, his statement recorded by the Railway Police contradicted another statement that he had taken money from his friends about whom he had given only a part information. However, he also told that he had not paid any income tax in the year 1994-95. Thus, the Railway Police was not satisfied with the explanation given by the assessee regarding cash amount recovered from his possession. In this view of the matter, the Director Inspection (Investigation) Income Tax, Kanpur, on 03.07.1995 issued warrant of authorizati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to furnish any satisfactory reply leading to form opinion that the seized money was unaccounted was not direct and relevant material before Director investigation to form a reasonable belief for the purpose of section 132 A of IT Act and ITAT could not have gone into adequacy of these reasons. (c)Whether under the facts and in the circumstances of the case, the learned ITAT was in justified in law equating the facts of the instant case with that of the apex Court's judgment in case of Shri Ajit Jain vs. Union of India reported in 260 ITR 80 (S.C.)." However, upon hearing learned counsel for parties, vide order dated 01.10.2010, a coordinate Division Bench of this Court of which one of us (Hon'ble Ritu Raj Awasthi, J) was a member, form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held in paragraphs 22, 23, 24 and 25 as under: "22. We agree with the reasons given by the Five-Members Bench of the Tribunal in Promain Ltd. v. Deputy Commissioner of Income Tax (supra) that the satisfaction to be reached by the Authority issuing warrant of authorisation is an administrative function. The fact, that the plea has to be entertained by the Authority issuing the warrant only after satisfying itself about the existence of the conditions on which the satisfaction has to be arrived at on the basis of the opinion in their possession and that such satisfaction has to be objective and not subjective, may prompt one to conclude that the power to initiate a search is only a quasi-judicial function. The dividing line after A.K. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the assessee has the right to object to the validity of the assessment in appeal on the ground that no search was initiated/conducted in the case of the appellant. The Assessing Officer can look into these aspects under Section 148BA unless the case is covered under Section 158BD of the Act. 24. The Five-Members Bench further held that the Tribunal can also look into the findings recorded by the Assessing Officer on the examination of the seized material, and validity of the order under Section 158BB which requires the Assessing Officer to determine the total undisclosed income with reference to the evidence found as a result of search and such other material/information relatable to the search and this evidence will include the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in [(2005) 279 ITR 298 (Delhi)]. The Court has discussed the power under Section 132 of the Income Tax Act as under: "The Tribunal has, as noticed earlier, answered both these questions in favour of the Revenue. It has, relying upon the decision of a Special Bench of the Tribunal at Bangalore in C. Ramaiah Reddy Vs. Deputy Commissioner of Income Tax,MANU/IL/5005/2003, held that the validity of the action taken under section 132 of the Act could not be examined in the appeal filed before it. We see no reason to take a different view. Any appeal before the Tribunal against the block assessment made under section 158BC does not take within its fold questions touching the validity of the search conducted under section 132 of the Act. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeks from today. The concerned authorities are directed to carry out the assessment proceedings as expeditiously as possible. No further directions are necessary." On the other hand, Shri Jaspreet Singh, learned counsel for respondent assessee refers to a Division Bench judgment of Rajasthan High Court in the case of Commissioner of Income Tax v. Smt. Chitra Devi Soni reported in (2009) 313 ITR 174, to contend that the special reasons recorded under Section 132 A of the Income Tax Act before ordering issuance of warrant of search and seizure become justiceable once the assessment order is called in question before the appellate authority. On due consideration of rival submissions, we find that the exercise of power under Section 132 and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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