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TMI Blog2015 (5) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... tively as is revealed by the Panchnama s on record. In any case, on these aspects, there is no dispute between the assessee and the Revenue. Last day when the authorization of search dated 8.12.1997 was finally executed / concluded is 16.1.1998 for the purpose of section 158BE(1)(b) of the Act. Considered in the said light, the assessment order passed by the Assessing Officer on 23.2.2000 is beyond the period of limitation prescribed in section 158BE(1)(b) of the Act. As a consequence the assessment order dated 23.2.2000 is untenable in the eyes of the law and it is hereby quashed. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... At the time of hearing, the learned representative for the assessee submitted that in so far as the Grounds of appeal Nos. 1 and 2 are concerned, assessee does not wish to press the same. Accordingly, Grounds of appeal Nos. 1 and 2 stated above are dismissed as 'Not Pressed'. Thus, the only issue surviving for consideration in the present proceedings is manifested by way of Ground of Appeal No.3, which seeks to challenge the assessment order passed by the Assessing Officer on the ground that it has been passed beyond the period of limitation prescribed under the Act. 5. In order to determine the aforesaid controversy, the relevant facts can be understood as follows. The appellant before us is an individual carrying on business as a share broker of the Bombay Stock Exchange through his proprietary concern, M/s. Ramkrishna Sekhsaria. In this case, a search action u/s.132 of the Act was carried out at the official and residential premises of the assessee on the basis of a warrant of authorization dated 8.12.1997. The premises covered by the search action were the following-(i) 719, Rotunda Building, B.S. Marg, Fort, Mumbai-400023 ( in short 'the Rotunda Building'), which is the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;……………………………………. 8. The search commenced on 13.1.1998 at 12.15 pm. The proceedings were closed on 13.1.1998 at 3.45 pm as temporarily concluded for the day to be commenced subsequently for which purpose seals were placed on the wooden drawer in the office premises at 719, Rotunda B S Marg, Mumbai, in our presence. 9. An order, under section 132(3) of the I.T.Act, 1961 in respect of the sealed premises as mentioned above was served on Shri.Bharat Sekhsaria by the said authorized officers," 6. On even date i.e., 13.1.1998 a Prohibitory Order u/s.132 (3) of the Act was also served on assessee, Shri Bharat Sekhsaria, whereby the wooden Cabinet containing the aforesaid material was sealed. Quite clearly, sealing of the wooden Cabinet and passing of the Prohibitory Order u/s132(3) of the Act thereof was in respect of the contents, which were already inventorised. Admittedly, such contents were share certificates, transfer deeds and other papers which were duly inventorised as per Annexure-2 to the panchnama dated 13.1.1998. Subsequently, no other seizure was made from the Rotunda buildi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer on 23.02.2000 whereby the total undisclosed income for block period was determined at ₹ 3,52,45,418/-. Be that as it may, the only plea of the assessee before us is to the effect that the search had infact concluded on 16.1.1998 itself as there was no search at all on 6.2.1998, meaning thereby that the period of limitation for passing the assessment order would end on 31.1.2000 whereas the assessment order has been passed on 23.02.2000 i.e. after the period of limitation had expired. Pertinently, section 158BE(1)(b) of the Act provides that where a search is initiated on or after the 1st day of January, 1997 the assessment order u/s.158BC shall be passed within two years from the end of the month in which the last of the authorizations for search u/s.132 was executed. On the strength of the aforesaid provision, the stand of the assessee is that since no search had infact been carried out on 6.2.1998, such date could not be regarded as the date on which the last of the authorizations for search was executed and therefore the period of limitation could not be extended to 23.2.2000. On the other hand, the stand of the Revenue is that plea of the assessee was wrong sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is usually determined by the word which is combined with it as a suffix. Examples being, nikah-nama (the written Muslim marriage contract), hiba - nama (gift deed, the word hiba meaning - gift), wasiyat nama (written will) and so on. So a panchnama is a written record of what the panch has witnessed. In Mohan Lal v. Emperor : AIR 1941 Bombay 149 it is observed that "the panchnama is merely a record of what a panch sees. "Similarly, the Gujarat High Court in the case of Valibhai Omarji V. The state : AIR 1963 Guj 145 noted that "a panchnama is essentially a document recording certain things which occur in the presence of panchas and which are seen and heard by them." Again in The Sate of Maharashtra V. Kacharasdas D. Bhalgar : (1978) 80 Bom LR 396, a panchnama was stated to be "a memorandum of what happens in the presence of the panchas as seen by them and of what they hear". We have examined the meaning of the word panchnama in some detail because it is used in Explanation 2(a) to Section 158BE of the said Act although it has not been defined in the Act. A Panchnama, as we have seen is nothing but a document recording what has happened in the presence of the witnesses (panchas). A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case in order to determine whether or not the panchnama of 6.2.1998 is of the type mentioned in the Explanation 2(a) to Section 158BE(1) of the Act. From the fact situation noted by us in the earlier paragraphs, it is clear that the panchnama of 6.2.1998 does not reveal that anything was seized on that date. It also reveals that nothing was found on that date. In fact, the only event that took place on 06.02.1998 was revoking of the earlier placed restraint order relating to share certificates, transfer deeds and other papers kept in the wooden cabinet in Rotunda Building, which had already been searched, found and inventorized at the time of drawing up of the panchnama dated 13.1.1998. Ostensibly, no further search was conducted after 13.1.1998 in the Rotunda Building, and all that was done on 6.2.1998 was that the Prohibitory Order passed u/s.132(3) on the Act on 13.1.1998 was vacated. Factually speaking, the aforesaid position is not in dispute. These circumstances shows that no search was carried out on 6.2.1998, therefore it has to be understood that the panchnama dated 6.2.1998 would not reflect the conclusion of search or execution of the 'last of the authorizations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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