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TMI Blog2017 (1) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by : Shri Ms. S. Padmaja ORDER Per Jason P. Boaz, A.M. This appeal by the assessee is directed against the order of the CIT(A)- 41, Mumbai dated 21.12.2011 for A.Y. 2008-09. 2.1 In this appeal, the assessee has raised the following revised grounds:- 1. On the facts and circumstances of the case, the learned assessing officer erred in assuming jurisdiction u/s. 153A of the Income Tax Act and consequently passing the order u/s. 143(3) r.w.s. 153A. 2. On the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in confirming the addition of ₹ 29,46,650/- on the basis of loose slip found during the course of search at appellant s brother s premises, without appreciating that the said transaction never materialized. 3. On the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in confirming the addition of ₹ 82,075/- being differential value of the amount invested in Mutual Fund and the redemption value when the major income was exempt from tax being Long Term Capital Gain. 2.2 By way of letter dated 07.08.2015, the assessee submits that ground No. 1 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initio. Further, in this case, on earlier occasions while hearing the assessee s appeals for assessment years 2006-07 and 2007-08, inspite of the directions of the Bench, Revenue was not able to produce a copy of the warrant of authorisation for conducting search under section 132 of the Act in the case on hand to establish/prove that the assessee was searched on 24.02.2009 as stated by the AO in the order of assessment. In fact, the AO s letter dated 30.11.2016, a copy of which was placed on record, clearly acknowledges the inability of the Department to produce the warrant of authorisation for search under section 132 of the Act and only confirms the fact a survey action under section 133A of the Act was conducted at the assessee s premises on 24.02.2009. In support of the proposition, that in the absence of a warrant of authorisation being issued to conduct search action under section 132 of the Act on the assessee in the case on hand, the prerequisite conditions for issue of notice under section 153A of the Act were absent, consequently the AO could not have assumed proper and lawful jurisdiction under section 153A of the Act and therefore valid order of assessment for A.Y. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice under section 153A of the Act dated 05.10.2010; which were invalid and required to be quashed. 3.3.2 It is seen from the records before us that the Bench offered Revenue ample/sufficient opportunities to produce the warrant of authorisation issued for conducting search under section 132 of the Act in the case on hand on 24.02.2009 as stated by the AO in the impugned order of assessment. We find that despite these opportunities, revenue failed to produce the same and in report dated 30.11.2016, the AO has only confirmed that as per the Appraisal Report, survey action under section 133A of the Act was carried out at the assessee s business premises on 24.02.2009 and a statement of the assessee was recorded on that day. In this factual matrix of the case, as discussed above, we conclude that no search warrant was issued authorising search under section 132 of the Act in the case on hand on 24.02.2009. Revenue has been unable to controvert this view as expressed by us. 3.3.3 Section 153A of the Act pertains to assessments to be carried out in case of search under section 132 or requisition under section 132A of the Act. Subsection (1) of section 153A provides that notwit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings, precludes it from taking any objection in this regard in any proceedings under the Act. With due respect we are unable to agree or concur with this proposition/contention put forth by the learned D.R. The provisions of section 292BB of the Act read as under: - Notice deemed to be valid in certain circumstances. 292BB. Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. From a plain reading of Section 292BB (supra), it is clear that it provides for certain circumstances in which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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