9911796707
TMI Blog2021 (10) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... t') on 6th December, 2007 by one Sri V. Ananda Rajan, Additional Director of Income Tax (Investigation) ('ADIT') authorizing himself and Sri M.L Sardar, Additional Director of Income Tax (Investigation) to conduct search and seizure operation of the locker standing jointly in the name of the Petitioner and her husband at Andhra Bank, Ashok Nagar Branch, Bhubaneswar. Though the said search took place, nothing was found in the locker. The said search was not followed up immediately by a notice under Section 153A of the Act initiating search assessment proceedings. 3. More than 18 months later, the Assessing Officer, i.e., the Assistant Commissioner of Income Tax, Circle-I (2), Bhubaneswar issued a notice on 14th July, 2009 commencing assessment proceedings under Section 153A/ 143(3) of the Act for the Assessment Year (AY) 2002-2003. Identical notices were issued for each of the AYs of 2008-2009. The Petitioner filed her returns for the said AYs. Thereafter the present writ petitions were filed in this Court challenging the initiation of the assessment proceedings under Section 153A of the Act. On 11th September, 2009 this Court directed that the assessment proceedings may continue b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Director or Additional Commissioner or ) (Joint director, (Joint Commissioner), (Assistant Director (or Deputy Director), (Assistant Commissioner or Deputy Commissioner) or Income Tax Officer), or (B) such Additional Director or Additional Commissioner or Joint Director, or Joint Commissioner, as the case may be, may authorise any Assistant Director or Deputy Director, Assistant Commissioner or Deputy Commissioner or Income-tax Officer, (the officer so authorized in all cases being hereinafter referred to as the authorized officer) to- (i) enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept; (ii) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available; (iia) search any person who has got out of, or is about to get into, or is in, the building, place, vessel, vehicle or aircraft, if the authorised officer has reason to suspect that such person has secreted about his person any such books of account, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing under clause (iii): Provided also that nothing contained in the second proviso shall apply in case of any valuable article or thing, being stock-in-trade of the business: Provided also that no authorisation shall be issued by the Additional Director or Additional Commissioner or Joint Director or Joint Commissioner on or after the 1st day of October, 2009 unless he has been empowered by the Board to do so." 5. According to the Petitioner the above amendment discriminates between two sets of Assessees: one to whom a search warrant has been issued prior to 1st October, 2009 for which due approval of the CBDT is not necessary and the other for whom a search warrant is issued after that date where the approval of the CBDT is mandatory. In the present case the search warrant was issued prior to 1st October, 2009. According to the Petitioner the Parliament has failed to provide a safeguard when the search warrant is issued by the Additional Director or the Additional Commissioner and therefore it is stated that the amendment violates Article 14 of the Constitution. It is further submitted that since the search and seizure operation is an invasion of the rights and liberty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above issues Mr. Sidhartha Ray, learned counsel for the Petitioner also raised the issue of invocation of Section 153-A of the Act, where no incriminating materials have been found or seized. He placed reliance on the decisions of the Delhi High Court in CIT v. Kabul Chawla, (2016) 380 ITR 573 (Delhi) and Filatex India Ltd. v. CIT, 380 ITR 586. Reliance is also placed on the decision of the Rajasthan High Court in Jai Steel (India) v. Assistant CIT, (2013) 1 ITR-OL 371 (Raj); and CIT v. Continental Warehousing Corporation (Nhava Sheva) Ltd., (2015) 374 ITR (Bom). Reference is also made to the decisions of the Delhi High Court in Principal CIT v. Meeta Gutgutia (2017) 395 ITR 526 (Del); and Principal CIT v. Kurele Paper Mills Pvt. Ltd. (2016) 380 ITR 571 (Del). 10. Apart from making submissions on the lines of the counter affidavit filed, Mr. T.K. Satapathy, Senior Standing Counsel for the Department has also filed a written note of submissions. It is sought to be contended therein that the ADIT or the Additional Commissioner of Income Tax (ACIT) is treated as an authorized officer in terms of the amendment to Section 132(1) of the Act with retrospective effect. It is further so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director General or Director or the Chief Commissioner or Commissioner, Additional Director or Additional Commissioner had the power to issue authorization. 43.6 A clarificatory amendment has been made in the subsection (1) of the section 132 to provide that Joint Director or Joint Commissioner always had the power to issue authorization." 12. Consequently this Court negatives the challenge raised by the Petitioner to the amendment to Section 132(1) of the Act. However, as regards the substantive challenge to the assessment proceedings under Section 153A, a perusal of the Panchnama shows that there is absolutely no incriminating material recovered. The Panchnama in fact reveals that the material recovered is 'NIL'. In other words there were no materials on the basis of which the assessment proceedings under Section 153A could have been initiated. Section 153A reads as under : "153A. Assessment in case of search or requisition. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 132A of the Act, it is apparent that: (a) the assessments or reassessments, which stand abated in terms of II proviso to Section 153A of the Act, the AO acts under his original jurisdiction, for which, assessments have to be made; (b) regarding other cases, the addition to the income that has already been assessed, the assessment will be made on the basis of incriminating material and (c) in absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made." 15. The legal position was thereafter summarized by the Delhi High Court in Kabul Chawla (supra), as under: "37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned of decisions, the legal position that emerges is as under:- i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the assessment year in which the search takes place. ii. Assessments and reassessments pend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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