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TMI Blog2017 (1) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. All these appeals are against the judgment and order of the Tribunal whereby the Tribunal has decided the matter partly in favour of the department and partly in favour of some of the parties. 2. This Court while admitting the appeals and framed the following substantial questions of law: D.B. Income Tax Appeal No. 65 / 2003 "1. Whether on the facts and circumstances of the case, the learned ITAT was justified in upholding the deletion of Rs. 72,16,435/- made by CIT(A)? 2. Whether on the facts and circumstances of the case, the learned ITAT was right and justified in upholding the deletion of Rs. 2,02,925/- made by CIT(A)?" D.B.INCOME TAX APPEAL No. 97 / 2003 "1. Whether the learned Tribunal had material and was right in law in holding that Shri Raj Kumar Sharma has not rebutted the presumption u/s. 132 (4A) of the Act in respect of Annexure A-8? 2. Whether the learned Tribunal had material and was right in law in holding that Annexure A-8 was of Shri Rajkumar Sharma individual?" D.B.INCOME TAX APPEAL No. 119 / 2003 "1. Whether in the facts and circumstances of the case, the learned Tribunal is right and justified in holding that there was no search conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and that it belonged to the firm? 2. Whether an appeal filed by one of the partners of the firm can be held maintainable on behalf of the other partners as also the firm?" 3. Counsel for the appellant Mr. N.M. Ranka has mainly submitted that search was conducted 12.11.1997 at Vijay Gopalji Ka Mandir, 11, Rudra Mahadev, Johari Bazar, Jaipur, which is business premises of M/s. Ratan Mandir and residence/ business of its partner Shjri Raj Kumar Sharma. During the search, papers and documents as per Annexure 'A' & 'AA' to the panchnama were found and seized. Notice u/s. 158BC of the Act was served on its four partners namely Shri Raj Kumar Sharma, Shri Mukul Rana, Shri D.K. Rana & Shri Y.K. Rana. Shri Mukul Rana filed retunn on 21.10.1999 at NIL. Most of the papers relating to M/s. Ratan Mandir were found and seized as per exhibit A-8 during the course of search proceedings at the business premises of one of the partners Shri Raj Kumar Sharma. Shri Sharma stated he was a working partner and does not knew anything about accounts and that the explanation on the same may be obtained from other partners. Statement of Shri Yognedra Rana was recorded on 30.09.1999. Some entries contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file any intimation regarding the discontinuation of the business as required u/s 176(3) of the IT Act 1961. During the course of search and undated and unsigned copy of the deed of dissolution was found. Thus, it is evident that though the dissolution deed was drafted the same was never executed. AS per partnership deed the business premises of the firm are located at Vijay Gopalji Ka Mandir, also known as 11, Rudra Mahadev Mandir, Johari Bazar, Jaipur, and this premises at that time was being utilised as residence of Shri Raj Kumar Sharma and from his residence certain documents as per annexure A-8 were seized. These documents pertain to the firm M/s. Ratan Mandir and therefore, the prima facie burden u/s. 132 (4A) to explain the seized documents and the transaction contained therein rested of Shri Raj Kumar Sharma, Who was also the main Managing Partner of the firm M/s. Ratan Mandir. The First objection of the appellant is that an order u/s 158 BC of the IT Act, 1961 can be framed in the case of only that person whose premises are searched as a consequences of Warrant of Authorisation issued u/s 132 in form No. 45 only. In the instant case the appellant has contended that no war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer who has carried out a search at the aforesaid premises, authorized in the warrant of authorization, copy placed at APB 12 &13. The perusal of the Panchnama reveals that ti has been drawn in case of Shri Raj Kumar Sharma, Vijay Gopal Ka Mandir, Johari Bazar, Jaipur and the premises to be searched under the warrant are residence of Shri Raj Kumar Sharma, Johari Bazar, Jaipur and the said Panchnama or Search warrant do not speak of any search under section 132 of the Income-tax Act, 1961 on M/s. Ratan Mandir the assessee before us. The assessing officer himself has stated the fact in the assessment order that search under Section 132 of the Income-tax Act, 1961 was carried out on 12.11.97 at the business premises of Shri Raj Kumar Sharma situated at Vijay Gopal ka Mandir, also known as Rudra Mahadev Mandir, Johari Bazar, Jaipur. It has also been brought to our notice by the Id. Counsel for the eassessee that the authorized officer has found books of account and other documents as inventorised at Annex. B forming part of the Panchnama but the same were not seized. It was also argued that in the event, the search could be said to be on the assessee, then there was no occasion for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Sharma which is not supported by the original form. It is required to be revalued and reappreciated after verifying the documents. We are not even commenting on the basic principal of reading the documents on this form No.45 otherwise, the independent conclusion will not be there by the Tribunal. Therefore we are remitting back the matter to the Tribunal. The judgment of the Tribunal based on this is required to be quashed and set aside. We are not giving reasons on other factual matrix since all the parties are agreeable to go back to the Tribunal, therefore, any finding given by the Court on factual matrix will adversely effect the case of either side. 11. Consequently, the judgment of the Tribunal is quashed and set aside and the case is remitted back to the Tribunal. The matter is fixed before the Tribunal on 06.02.2017. All the parties will appear before the Tribunal on that date. The Tribunal may direct the department to produce all the original documents within three weeks and two weeks time will be granted to the parties to inspect the documents and make their submissions on the next date of hearing. All these proceedings may be completed within six months from 06.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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