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TMI Blog2016 (5) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission was recorded from the partners of the firm nor the search notice was served upon the partners of the firm, the search conducted qua the assessee firm was not a valid search. In such circumstances, proceedings initiated u/s 153a in the case of the assessee firm are invalid. Accordingly we do not find any infirmity in the order of the learned CIT (Appeals) accordingly we uphold the same. - Decided in favour of assessee. - Appeal No 142 to 147 /BLPR/2012 - - - Dated:- 30-10-2015 - Shri Mukul K. shrawat and Shri shamim Yahya JJ. For the Appellant : Shri Rajiv Vershney For the Respondent : Shri N.C. Begani ORDER Per Shri Shamin Yahya, A.M. These appeals by the revenue are directed against the order of learned CIT (Appeals), Raipur dated 31-05-2012 and pertain to assessment years 2002-03 to 2007-08. Since common issues have been raised and the issues are related, these appeals are diaposed of by this common order. The common issue raised is that the learned CIT (Appeals) erred in cancelling the block assessment orders framed by the AO for these assessment years. 2. This is the second round of these appeals before the Tribunal. In the earlier rounf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur. There is no office of the firm at the residence of the partners given in the warrant of authorization. Search u/s 132 cannot be imagined at the appellant business premises located Near Railway Crossing Khamatarai Raipur on the strength of this authorization. Search u/s 132 cannot be imagined at the appellant s business premises located Near Railway Crossing Khamatarai Raipur on the strength of this authorization. No statements under sec 132 (4) of the Act were recorded; nor seizure of any bullion, money, valuables, loose papers, documents etc. relating to the appellant was effected from the appellant s premises at khamtari even to render an impressions that any action comtemplated under sec.132 of the Act was taken in the appellant s case. Persual of the provisions of section 132, 153A, 153B,etc of the act and rule 112 of the IT. Rules show that mere initation of search in a case is not sufficient to invoke the provisions of sec.153A, but counduct of an actual search is all the more essential. Patnership firm is distinct legal entity from its partner in the eyes of law and ally search in the residential premises of the partners could not be considered as a search against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT PUNE). 3. Naresh chand Baid vs. ACIT 23 Taxmann.com 378 (Hon ble High Court of Chhattisgarh) 4. Canara Housing Development Co. vs. DCIT, Bangalore, 49 Taxmann.com 98 (Hon ble High Court Of Karnataka). Drawing strength from these case laws learned D.R. submitted that the search initiated u/s 132 at the residebnce of the partners of the assessee firm very much falls within the ambit of seach envisaged u/s 153 A and hence the search duly and properly gave jurisdiction to the AO to issue notice and make assessment u/s 153 of I.T Act. 7. Per contra learned counsel of the assessee made of following submissions i) The respondent is a partnership Firm running a cold storage at Plot no. 51621. Near Railway Crossing Kbamtarai Rajpur (Ahhatisgarh) which is also its business premises and from which the respondent has been regularly filing its return of income since long which is well within the Knowledge of the Department, copy of return of income since long which is well within the Knowledge of the department, copy of return filed for the Asst. Years 2002-03 and Intimation ujs 143(I)(a) of the LT act are wnclosed (Refer Page No.77 78 of the Paper book) The respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises of the respondent firm nor any requisition was made under the provisions of section 132A of the LT Act. It is further submitted that the provisions of section 153A(1) which starts with a Non Obstante clause contemplate initiation and conduct of search under section 132 of the LT act on any person (section 153A(1)(b) reads as assess or reassess the total income .. in which such search is conducted or . ) and the assessing officer gets jurisdiction to issue notice and frame assessment under the provisions of section 153A r.w.s. 1536 of the LT Act only after actual conduct of search in the premises of the assessee in accordance with the provisions of section 132(1) of the LT Act and after performing all the facts, deeds and things enumerated under the provisions of section 132 of the LT Act r.w. rule 112 of the LT. Rules i.e. to say search has to be necessarily conducted on the assessee. Hence, the execution of warrant of authorization issued under section 153A abd search is to be actually conducted in the case of the assessee to enable exercise of valid jurisdiction by the Assessing officer and in the present case, no warrant of authorisation under section 132(1) to enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessarily found or belonging to that assessee resulting into Impounding or seizure or finding of any books of accounts, documents, money, bullion, valuable article or thing etc. relating to the assessee from the searched premises cannot lead to an inevitable conclusion that a valid search was conducted in his case and that warrant of authorization shall have to be executed by the authorised officer against the assessee and considering section 153A(1)(b), not only initiation of search is mandatory but conduct of actual search is also material and such conduct of a person specific and premises specific search is a sine qua non for assumption of jurisdiction under the provisions of section 153A of the I.T.Act. Reliance in support of the aforesaid propositions is placed on the following judicial pronouncements : JM Trading Corporation Vs. ACIT (2008) 20 SOT 489 (ITAT MUMBAI) (PARA 24) affirmed by the Hon ble Bombay High Court vide judgment rendered on 29.06.2009 in Income Tax Appeal No. 589 of 200 and SLP filed by the Department in CC 16238/2010 dismissed by the Hon ble supreme court vide order Dated 2910.2010; ACIT Vs. MAB Finlease Ltd. (2014) 43 taxmann.com 107(ITAT D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses which happens to be the. We find that in the above said case law, warrant of authorization was specifically authorizing to search residential premises of assessee firm wherein materials relating to assessee firm were found. The above case law is totally distinguishable from the present case as no material whatsoever was found at the premises where search was conducted. i i) ACIT vs. Chilka Vyankatesh Sidram (Supra) This case law from tribunal related to block assessment under chapter XIVB of the IT act. The issue was whether search warrant cannot be treated as illegal merely because full names of assesses are not written on it and whether non recording of the statement in a search conducted u/s 132 does not render search illegal. The above case law is also not applicable on the facts of the present case the issue related to search conducted under block assessment under Chapter XIVB of the IT Act. Hence this case law does not support the case of the learned D.R. iii) Naresh Chand Baid vs. ACIT (Supra) In this case the issue was whether Revenue authorities are component to conduct search in premises of partners of the firm, the names of all partners as specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h residential premises of assessee firm wherein materials relating to search residential premises of assessee firm wherein materials relating to the assessee firm were found. The above case law is totally distinguishable from the present case as no material whatsoever was found at the premises where search was conducted. ii) ACIT Vs. Chilka Vyankatesh Sidram (supra) This case law from tribunal related to block assessment under chapter XIVB of the IT Act. The issue was whether search warrant cannot be treated as illegal merely because full names of assesses are not written on it and whether non recording of the statement in a search conducted u/s 132 does not render search illegal. iii) Naresh Chand Baid vs. ACIT (Supra) In this case the issue was whether Revenue authorities are component to conduct search in premises of partners of the firm, the names of all partners as specifically mentioned in warrant of authorization issued in the name of partnership firm. This case law is not at all applicable as the issue of competence of search is not here. Further in the said case the facts were that the assessee participated and articles were found in search. This is not at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull and void A special leave petition aganst the above order of Hon ble Bombay High court has been dismissed by the Hon ble Apex court in SLP CC 16238/2010 dated 29-10-2010. 11. Noe in the light of the aforesaid discussion and case law, we analysis the facts of the present case. In this case there was a search. In the warrant of authorization the assessee s firm s name was there after the names of 8 individuals of the same group. The place of search was mentioned as residence of Shor Pritpal Singh Chandhok and others located at pritpal Farm House, VIP Road, Raipur. The said premises is not the business premises of the assessee firm though the assessee s partners reside at the said place. In this view of the matter on the anvil of the Hon ble Bombay high court decision in the case of Tirupati Oil Corporation (supra) and Hon ble Karnatake High Court decision in the case of Nenmal Shankarlal Parmar (Supra) it cannot be said that there was any serch on the assessee firm. Furthermore more it is noted that in the said search no material whatsoever relating to the assessee firm was found nor even any statement of the partners of the assessee firm was taken. Furthermore there is no e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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