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TMI Blog2017 (9) TMI 1599X X X X Extracts X X X X X X X X Extracts X X X X ..... not fulfilled. Thus, the person in respect of whom the search is initiated u/s 132 of the Act is the same persons against whom the notice is to be issued u/s 153A of the Act. In view of this legal position , we are of the considered view that since no search has been initiated u/s 132 of th4e Act in the case of assessee ,therefore notice issued u/s 153A of the Act is without jurisdiction and the consequent assessment so framed u/s 143(3) r.w.s 153Á of the Act was also void ab-initio - Decided in favour of assessee. - I.T.A. No. 4814 to 4818/Mum/2013 - - - Dated:- 14-7-2017 - Shri D.T. Garasia, Judicial Member And Shri Rajesh Kumar, Accountant Member Assessee by : Nishant Thakkar Revenue by : B. Pruseth ORDER Per Rajesh Kumar, A. M. The captioned are appeals by the assessee pertaining to assessment years 2004-05 to 2008-09. The appeals are directed against the common order of the CIT(A)-38, Mumbai, dated 28.3.2013 which in turn have arisen from an order passed by the Assessing Officer dated 30.12.2010 under section 143(3) r.s.w.153A of the Income Tax Act, 1961(in short ‟the Act). Since issue involved in all these appeals is common, therefore these app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in additional ground no.1 by the assessee is qua wrongful assumption of jurisdiction by the AO u/s 153A of the Act in view of the fact that no search action has been carried out on the assessee. 5. The facts in brief are that the assessee filed its return of income on 1.11.2004 declaring total business loss of ₹ 1,778/-. The assessee is a 100% subsidiary of Indian Company M/s DORF Ketal India Private Limited (DKIP) and has its control and management in India. The assessee apart from being resident of United States has also become the tax resident of India in India by virtue of 100% management and control in India. The assessee is engaged in the business of manufacturing chemicals and pharmaceuticals. A search and seizure action u/s 132(1) of the Act was carried out on 30.5.2008 at the business premises of M/s Dorf Ketal Chemicals (I) Pvt Ltd and also on the residential premises of the directors of the said company. The assessee is a wholly subsidiary company of M/s Dorf Ketal Chemicals (I) Pvt Ltd since 1989. The notice u/s 153A was issued to the assessee and thereafter the assessment was completed u/s 143(3) read with section 153A of the Act. According to the Assessee, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings after issue of notice u/s 153A and has never objected to the issue of notice u/s 153A during the assessment proceedings. In support of his contention, the ld.DR strongly relied on the following decisions: i) Jose Cyriac V/s CIT (2012) 20 taxman.com 738 (Kerala); ii) Naresh Chand Baid V/s ACIT (2012) 23 taxmann.com 378(Chhattisgar); iii) MDLR V/s CIT (2013) 40 taxmann.com 365(Delhi); iv) M/s Ultratech Cement Ltd V/s Addl.CIT in ITA No.1060 of 2014 dated 18th April, 2017 (Bombay High Court). Finally the ld Dr submitted before the bench that nonetheless the name of the assessee was not on the search warrant , a valid search has been conducted on the business premises of the assessee and therefore the ground additional ground raised by the assessee deserved to be dismissed. 9. We have heard the rival contentions and perused the material placed before us including the orders of authorities below and case law relied upon by rival parties. The undisputed facts of the case are that the assessee‟s name was not mentioned in the search warrant which was fairly admitted by the ld. DR after the Bench specifically asked the ld. DR to verify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. (2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside. Explanation.-For the removal of doubts, it is hereby declared that,- (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year. Thus, it is clear from the perusal of the provisions of section 153A of the Act that notice u/s 153A can only be issued where a search is initiated u/s 132 of the Act or books of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er u/s 153A of the Act. We have also perused the case law relied upon by the Revenue but find the same are distinguishable on facts. In the case of M/s Ultratech Cement Ltd (supra), the issue involved was deduction u/s 80IA of the Act. In the case of Jose Cyriac (supra), the Hon‟ble Kerala High Court has held that the single warrant could be issued in a group of concerns but the name of the assessee has to be mentioned therein. But in the present case before us the name of the assessee is not mentioned in the search warrant and hence distinguishable. In the case of Naresh Chand Baid (supra), the Hon ble High Court held that when the name of the assessee was found specifically mentioned in the warrant of authorisation issued in the name of the firm, the authority are competent to conduct search in the premises of the partner of the firm. However, in the present case , the name of the assessee was not mentioned. Having regard to the facts of the assessee‟s case in the light of the ratio laid down by the various judicial forums, we are of the considered view that the notice issued by the AO u/s 153A of the Act is without jurisdiction as there was no initiati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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