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TMI Blog2008 (7) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... t the second authorisation dated 12th Dec, 1995 issued by the empowering officer in favour of search conducting officer is the last authorisation for conducting searching in the residence of the assessee at 21.45 p.m. on the same date, which is the last authorisation executed by the search conducting officer, the same was closed at 6 p.m. and Panchnama was drawn to evidence the fact that cash was seized from the residence of the assessee. Therefore, for the purposes of limitation u/s 158BE(1)(a), the block period assessment order passed by the AO is beyond the period of limitation. On this ground also the finding of fact recorded by the Tribunal is based on undisputed facts. Therefore, we have to accept the finding of fact recorded by it in the impugned judgment on the question of limitation holding that the last Panchnama dated 12th Feb., 1996 on the first authorisation executed by search conducting officer that nothing was found and seized is an undisputed fact and the finding of fact recorded by the Tribunal is based on strong foundation of the provisions of the Act, as last Panchnama stated by the Revenue is not the Panchnama in the eyes of law for the reason that the prohib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the finding of the appellate authority on merits of the case in Appeal No. 69/2002 and in the connected appeal the order passed by the Tribunal in IT(SS)A No. 165/Bang/1997 regarding block period assessment order dated 13th July, 2007 and praying to set aside the impugned judgment by allowing the appeals and remanding the matter to examine the concurrent finding of fact on merits in these matters and restore the order passed by the assessing authority. 2. The substantial questions of law framed in IT Appeal No. 69/2002 are extracted hereunder : 11. Whether the Tribunal is correct in holding that the last drawn Panchnama dated 12th Feb., 1996 should not be taken into consideration for the purpose of computing limitation as per Expln. 2 to section 158BE of the Act, but intermediary date i.e., 19th Jan., 1996 should be the date taken for the purpose of computation of limitation and consequently treat the block assessment order as barred by limitation ? 12. Whether the Tribunal was correct in examining the duration taken for the search from 12th Dec, 1995 to 12th Feb., 1996 raised for the first time by the assessee before the Tribunal when the jurisdiction and the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case, two authorisations were issued by the officer empowered for the purpose of conducting search both in the official premises and residential premises of the assessee by issuing the authorisation on the same day viz., 12th Dec, 1995. The search was conducted on the basis of authorisation issued by authorised officer at 12th Dec, 1995 at 3.30 p.m. and closed temporarily at 1.15 p.m. on 13th Dec, 1995. Search started at 3.30 p.m. and closed on 13th Dec, 1995 at 1.15 p.m. Several records were seized and thereafter, prohibitory order under section 132(3) of the Act was passed as the authorised officer was under the bonafide belief that further search and seizure are required to be made with regard to undisclosed income of the assessee and thereafter on 19th Jan., 1996 at 3.00 p.m. search was conducted, Panchnama was drawn at 6.30 p.m., no seizure was made. On 7th Feb., 1996 at 9.30 a.m. search commenced and closed at 11.20 a.m. no seizure was made. On 12th Feb., 1996 at 3 p.m. search started and closed at 3.45 p.m. on the same day. Again, search commenced on 13th Dec, 1995 at 12.30 p.m. and closed at 4 p.m. on the same day. No seizure was made as the Panchnama was drawn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is barred by limitation. The said finding of fact is neither erroneous nor error in law. In support of the contention urged by the learned counsel on behalf of the Revenue that the Tribunal has no power to go into the factual correctness and legality of the Panchnama drawn by the empowered officer executing the last authorisation for Conducting search, he placed strong reliance on Ramaiah Reddy's case (supra). The said legal contention is strongly rebutted by the learned counsel for the assessee, placing strong reliance upon the provisions of section 132(13), wherein it is stated that the provisions of the Cr.PC, 1973 [2 of 1974] relating to search and seizure shall apply, so far as may be, to search and seizure of money, bullion, jewellery, under sub-s. (1) or sub-s. (1A), which provisions provide the procedure required to be followed by either investigation officer or authorised officer for conducting search and seizure of money, bullion, jewellery. 7. Further, the learned counsel submits that in miscellaneous petition filed by the Revenue challenging the finding of fact recorded on the question of limitation framed in the appeal by the assessee was sought to be int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer to conduct search on both the office and residential premises of the assessee on 12th Dec., 1995. The last authorisation is the second authorisation executed by the officer for conducting search in the residential premises of the assessee on 12th Dec, 1995 at 3.45 p.m.. Though the first authorisation was issued on the same day for conducting search in the office premises of the assessee, the search started at 3.30 p.m.. Therefore, we have to treat the second authorisation executed at 3.45 p.m. on 12th Dec, 1995 and Panchnama drawn by the search conducting officer after seizure of cash from the house of the assessee is the last authorisation and the same has to be treated as last Panchnama for the purpose of computation of limitation for the reason that on 13th Dec, 1995 in the residence of the assessee search started at 12.30 p.m. and concluded at .4 p.m., on the same day. On that day, no seizure of either jewellery, cash or bullion was made, only jewellery was inventorised. The above said Panchnama cannot be taken as a valid Panchnama for the purpose, of computation of limitation of passing the assessment order as, the, same is not in conformity with the provisions of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he IT Rules 104 and 105 (sic) , 112(4) framed by the Union of India in exercise of its rule making power under section 295 of the IT Act, it is worthwhile for this Court to extract r. 112(4) of the Rules which reads thus : (4) If ingress into such building or place cannot be obtained it shall be lawful for the authorised officer executing the authority, with such assistance of police officers or of officers of the Central Government, or of both as may be required, to enter such building or place and search therein and in order to effect an entrance into such building or place, to break open any outer or inner door or window of any building or place, whether that of the person to be searched or of any other person, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance : Provided that, if any such building or place is an apartment in actual occupancy of a woman, who according to custom does not appear in public, the authorised officer shall, before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing and may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has examined the statutory provisions of Expln. (ii) to section 158BE of the Act and has rightly held that Panchnama drawn on 12th Feb., 1996 by the search conducting officer is not the last one as no cash,, jewellery or bullion was seized from the place of search conducted and attested by two witnesses for the purpose of initiation of the proceedings against the assessee under Chapter XV of the IT Act on the ground that undisclosed income was found at the time of search in the office premises of the assessee. Therefore, the Tribunal is legally justified in examining the correctness of the last Panchnama dated 12th Feb., 1996 as claimed by the Revenue for the purpose of computation of one year period of limitation as stipulated under section 158BE(1) of the Act to pass block period assessment order against the assessee. According to section 158BE r/w Expln. (ii) to clause (a) Panchnama is an important document for the assessing authority to examine the undisclosed income may be money, bullion, jewellery, anything seized in the presence of two inhabitant witnesses must be proved by examining them before the AO, when the correctness of the same is disputed. Therefore, the Panchnama r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch and nothing was found in the premises of the office of the assessee and drawing the Panchnama to this effect cannot be in the legal term called as last Panchnama. Panchnama dated 12th Feb., 1996 could not have been drawn by the search conducting officer for the purpose of computation of limitation under section 158BE(1)(a) to pass assessment order. Taking the abovesaid Panchnama date as last one to justify the assessment order with regard to limitation, the same is not passed within one year as provided under section 158BE(a) of the IT Act. Hence the findings recorded by the Tribunal on the contentious point of limitation are legal and valid as the same are based on facts and the provisions of the Act. Therefore, we answer the substantial question of law No. 4 against the Revenue and confirm the finding of fact recorded by the Tribunal in the impugned judgment on the question of limitation. The Tribunal has rightly rejected the miscellaneous petition of the Revenue holding that the order passed on merits on the question of limitation is not vitiated in law. In our considered view there is no error apparent on the face of the record. Hence, the order passed in the miscellaneou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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