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TMI Blog2019 (8) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... of accounts relating to the assessee-firm has been found and seized, which by itself proves the fact that the said premises was used by the assessee even as on the date of search conducted. Hon ble Delhi High Court in MDLR RESORTS PVT. LTD. AND OTHERS VERSUS CIT [ 2013 (12) TMI 1116 - DELHI HIGH COURT] has held that address being different would not vitiate the search and a person can also operate or keep books of accounts, jewellary etc., at different places and not necessarily the registered office or where the business is conducted. Hence, the search conducted in the premises in which the assessee may not be carrying on the business would not nullify the search. However, if the search is conducted in a premises other than what is reflected in the authorisation, then, the consequences would be different. In the instant case, search has been conducted in the premises, the address of which is reflected in the authorisation and undisputedly, occupied by Mr.K.M.Vishwanath, who was the erstwhile partner of the assessee till he retired on 31.07.2009. Despite notice issued u/s 153A, the said Sri.K.M.Vishwanath had not filed his return of income and had replied to the said noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2010 on the strength of warrant of search dated 09.12.2010. During the course of search conducted at the business premises of M/s.Associated Mining Company, 18/35, II Link Road, Parvathinagar, Ballari various documents belonging to the assessee came to be seized. 3. Consequently, assessment proceedings under Section 153A of the Income Tax Act, 1961 came to be initiated for the years 2005-06 to 2010-11 by issue of notice dated 15.03.2012. Said notice was served on the assessee on 21.03.2012 at the address No.123/250, Opposite to Kumaraswamy temple, Club Road, Veeranna Gouda Colony, Ballari, as this was in new address of the firm after the reconstitution of the partnership firm on new partners Mr.Gali Janardhana Reddy and Smt.Gali Lakshmi Aruna took over from 01.08.2009. Simultaneously, notices under Section 153A for the assessment years 2005-06 to 2010-11 were also served on 23.02.2012 at No.64/3, Lakshmi Venkateswara Nilaya, 16th Cross, Vyalikaval, Bengaluru, wherein Sri.K.M.Vishwanath was residing and who was the erstwhile partner of M/s.Associated Mining Company till 31.07.2009. However, till the date of assessment order came to be passed in respect of the assessee-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain, learned Advocate appearing for the assessee. 7. It is the contention of Sri.Y.V.Raviraj, learned Advocate appearing for revenue that Tribunal erred in not appreciating the language employed in Section 132 of the Act to contend that the competent authority, if has reason to believe that any person who satisfies the condition prescribed under Section 132(1) of the Act, then such authority can authorise such officer to enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such books of accounts, other documents, money, bullion, jewellary or other valuable article or thing kept. Elaborating his submission on this issue, he would contend that location of the premises is in relation to the satisfaction reached by the authorities mentioned therein and authorised officer can search any place mentioned in the warrant as well as any other place where he suspects that books of accounts belonging to the assessee are kept and thereby the change of address in the firm of the assessee would not invalidate the search. 8. He would also draw the attention of the Court to the judgment in the case of MDLR Resorts (P.) Limited vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be, disclosed for the purposes of the Indian Income-tax Act, 1922 (11 of 1922), or this Act (hereinafter in this section referred to as the undisclosed income or property), then,- (A) the Principal Director General or Director General or Principal Director or Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, jewellery or other valuable article or thing : Provided that where any building, place, vessel, vehicle or aircraft referred to in clause (i) is within the area of jurisdiction of any Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, but such Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner has no jurisdiction over the person referred to in clause (a) or clause (b) or clause (c), then, notwithstanding anything contained in section 120, it shall be competent for him to exercise the powers under this sub-section in all cases where he has reason to believe that any delay in getting the authorisation from the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner having jurisdiction over such person may be prejudicial to the interests of the revenue : Provided further that where it is not possible or practicable to take physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of a dangerous nature, the authorised officer may serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay requisition the services of any police officer or of any officer of the Central Government, or of both, to assist him for all or any of the purposes specified in sub-section (1) or sub-section (1A) and it shall be the duty of every such officer to comply with such requisition. (3) The authorised officer may, where it is not practicable to seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing, for reasons other than those mentioned in the second proviso to sub-section (1), serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this sub-section. Explanation .-For the removal of doubts, it is hereby declared that serving of an order as aforesaid under this sub-section shall not be deemed to be seizure of such books of account, other documents, money, bullion, jewellery or other valuable article or thing under clause (iii) of sub-section (1). (4) The authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Principal Director or Director for such retention is obtained : Provided that the Principal Chief Commissioner or Chief Commissioner, Principal Commissioner or Commissioner, Principal Director General or Director General or Principal Director or Director shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income-tax Act, 1922 (11 of 1922), or this Act in respect of the years for which the books of account or other documents are relevant are completed. (8A) An order under sub-section (3) shall not be in force for a period exceeding sixty days from the date of the order. (9) The person from whose custody any books of account or other documents are seized under sub-section (1) or sub-section (1A) may make copies thereof, or take extracts therefrom, in the presence of the authorised officer or any other person empowered by him in this behalf, at such place and time as the authorised officer may appoint in this behalf. (9A) Where the authorised officer has no jurisdiction over the person referred to in clause (a) or clause (b) or clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the reasons for such objection and requesting for the return of the books of account or other documents and the Board may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fit. (11) [***] (11A) [***] (12) [***] (13) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizure shall apply, so far as may be, to searches and seizure under sub-section (1) or sub-section (1A). (14) The Board may make rules in relation to any search or seizure under this section ; in particular, and without prejudice to the generality of the foregoing power, such rules may provide for the procedure to be followed by the authorised officer- (i) for obtaining ingress into any building, place, vessel, vehicle or aircraft to be searched where free ingress thereto is not available ; (ii) for ensuring safe custody of any books of account or other documents or assets seized. [Explanation 1.- For the purposes of subsections (9A), (9B) and (9D), with respect to execution of an authorisation for search , the provisions of sub-section (2) of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by it and published in the Official Gazette (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made 97[and for the relevant assessment year or years]: [Provided also that no notice for assessment or reassessment shall be issued by the Assessing Officer for the relevant assessment year or years unless- (a) the Assessing Officer has in his possession books of account or other documents or evidence which reveal that the income, represented in the form of asset, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more in the relevant assessment year or in aggregate in the relevant assessment years; (b) the income referred to in clause (a) or part thereof has escaped assessment for such year or years; and (c) the search under section 132 is initiated or requisition under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n conjunction with Section 132 would indicate that mere conducting of search or in other words, where a search has been initiated under Section 132 would suffice to issue notice under Section 153A and the limitation for completion of the assessment is reckoned and would be counted for the date as recorded in the last panchanama drawn in relation to any person. 13. A plain reading of Section 132 of the Act would disclose that when the competent authority has reason to believe that any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion or jewellery or other valuable articles or other thing represents either wholly or partly, income or property which has not been or would not be disclosed for the purposes of the Act would partake the characteristic of an undisclosed income or property, then, warrant of search would be issued authorising the officer indicated in subclause (A) or (B) to enter and search any building, place, vessel etc., are kept. Thus, the intention of the legislature is clear from the expression and language found in subsection (1) of Section 132 that location of the premises is in relation to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Ballari. The premises which has been searched is the same premises as indicated in the authorisation. This fact is not in dispute. However, what has been disputed is, the said premises did not belong to the assessee. The language or expression of sub-section (1) of Section 132 is clear and unambiguous. The location of the premises is in relation to the satisfaction reached by the authorities mentioned therein and the authorised officer can search any place mentioned in the warrant including any other place where he suspects that the books of accounts belonging to the assessee are kept and as such, the mere change of address of the assessee even being in the know how of the income tax department by itself would not vitiate or invalidate the search conducted under Section 132 of the Act. 17. Even otherwise, in the instant case, the search conducted is in respect of the premises where the business of the firm carried earlier and continued by Sri.K.M.Vishwanath, who no doubt had retired from the partnership of the assessee-firm and it is in this premises where the books of accounts relating to the assessee-firm has been found and seized, which by itself proves the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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