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TMI Blog2008 (6) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... o-owners who owned a building named Jalaram Theatre (building). It is the say of the petitioners that the building had been rented out on a monthly rent of Rs. 6,000 in 1971 (subsequently raised to Rs. 8,000) to a firm named M/s Jayshree Talkies (Jayshree). It is further averred by the petitioners that the petitioners and/or relatives of the petitioners are in no way related to the partners of Jayshree which is carrying on business of exhibition of films in the building. 2. It appears that search action under s. 132 of the Act took place on 3rd Sept., 1998, at the premises where Jayshree is running the business of exhibiting the films. Admittedly the warrant of authorisation for conducting the search has been issued in the name of "partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search was an invalid search, subsequent notice under s. 158BC of the Act could not be struck down. Elaborate submissions were made on the basis of the averments made in affidavits in reply dt. 6th Oct., 2000, 9th Oct., 2000, 10th Dec., 2000, and 11th Dec., 2000, to submit that the annexures to the said affidavits went to show that the respondent authorities were justified in calling upon M/s Jalaram Theatre to file a return of income pursuant to search proceedings under s. 132 of the Act which took place on 3rd Sept., 1998. More particularly, account opening form procured from Union Bank of India was relied upon which is annexed to the affidavit dt. 10th Dec., 2000. 6. After hearing the learned advocates appearing for both the sides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 133A of the Act, i.e., survey operation and not a search operation. Annex. 'B' refers to five different premises, at Sr. No. 3 Jayshree Cinema and Guest House, Junagadh, appears. Suffice it to state that none of the premises mentioned in Annex. 'B' even refer to the premises of M/s Jalaram Theatre. Therefore, on the day the said note was approved by Dy. Director of IT (Inv.), Rajkot, viz., 26th Aug., 1998, and further approved by Director of IT (Inv.), Ahmedabad on 26th Aug., 1998, there was no proposal and no approval in relation to either the petitioners in their individual capacity, or as partners of M/s Jalaram Theatre as an entity. 8. Subsequently on 3rd Sept., 1998, Asstt. Director of IT(Inv.)-2, Rajkot, prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of authorisation the same has been issued in the name of "partners of Jalaram Theatre/Jayshree Talkies". Thus, the position that emanates from the record of the Revenue is that till the survey proceedings were proposed and sanctioned M/s Jalaram Theatre was never in contemplation. Similarly, even at the point of time, when on 3rd Sept., 1998, Asstt. Director of IT (Inv.) proposed to convert the survey proceedings into search proceedings there was no proposal qua any entity named M/s Jalaram Theatre. The name appears for the first time in the second satisfaction note while issuing the warrant of authorisation. However, as noticed hereinbefore, it is important to note that the authority was not sure even at that point of time, while recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, in the first instance to show that the entity on whom a notice under s. 158BC of the Act is issued is the entity or the person in whose case search proceedings under s. 132 of the Act have been conducted. In the present case, from the record of the respondent authority and the facts which have come on record of this petition it becomes apparent that the prerequisite conditions empowering the AO to exercise the powers for issuing notice under s. 158BC of the Act are not fulfilled. 12. During course of hearing reliance had been placed on a draft document relating to proposed sale of property known as Jalaram Theatre for a sum of Rs. 27,50,000 to submit that the said document was unearthed during course of survey leading to belief t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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