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TMI Blog2022 (11) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... eciate that mere preparation of warrant of authorization u/s 132(1) in the name of the appellant in respect of the premises namely 'C-13, Sushant Lok, Phase-1, Gurgaon' could not confer jurisdiction in absence of name of appellant on 'panchnama' for said premises, which tantamount as if no search conducted on appellant as has been held by the Apex Court in the case of CIT v M/s J.M. Trading Corporation upholding the judgment of Bombay High Court dated 29.06.2009 in ITA No. 276/2009 and decision of Tribunal in the case of J.M. Trading Corporation vs. ACIT reported in 20 SOT 489 (Mum). 2 That addition made and upheld of Rs. 62,89,55,192/- by the learned Commissioner of Income Tax (Appeals) is per se without jurisdiction since the same is not based on any incriminating material detected as a result of search on the appellant firm as has been also held by the judgment of Hon'ble Delhi High Court in the case of CIT vs. Kabul Chawla reported in 380 ITR 573 and Pr. CIT vs. Meeta Gutgutia reported in 395 ITR 526. 2.1 That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that approval obtained u/s 153D of the Act was a mechanical and, invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch and seizure operation u/s 132 of the Income-tax Act, 1961 [hereinafter referred to as 'The Act'] was conducted on 21.07.2016 at the residential premises of M3M Group of cases including the assessee. Notices u/s 153A of the Act was issued and served upon the assessee requiring it to file its return of income. In response, the assessee filed its return of income on 07.08.2018 declaring an income of Rs. 3,53,03,79,100/-. 5. Basis of entire assessment proceedings revolves around the fact that the Assessing Officer was under the strong belief that as a result of search proceedings, the department came to know that the assessee firm, through a series of transactions with conduit companies, including established entry operators, have transferred and placed significant amount of fund eventually for acquisition of companies owing 430 areas of prime land at Manger, Gurgaon-Faridabad border. 6. The assessee was-show caused to explain as to why the sum of Rs. 62.89 crores which was paid in cash over and above the deal of Rs. 135.9 crores for acquisition of shares of M/s Kenwood Mercantile Pvt Ltd [KMPL] and M/s Goodfaith Builders Pvt Ltd [GBPL] by M/s Peakwood Realty Pvt. Ltd be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It cannot be denied that this is an issue pertaining to jurisdiction. It goes to the very root of the matter. The facts with regard thereto are available before us. As such, we can very well go into this issue at this stage. The Warrant of Authorization (APB page 177-178) shows the address of the premises to be searched as '3rd Floor, Global Arcade, MG Road, Gurgaon.' The assessment order as well as the order under appeal have taken note of the fact of this address being the address of the premises searched, The assessee contends that this premises is not owned by it and, therefore, the search carried out is invalid qua the assessee. The department has not disputed the factum of the said premises not belonging to the assessee. Even the document pertaining to the assessee, which was found from this premises in the search was, as stated by the Id. Counsel for the assessee before us on query, owned up by the Vipul Group and surrender was made by them on the basis thereof. Thus, indisputably, there is nothing on record to connect the assessee with the premises searched. Now, in 'JM Trading Corporation', 20 SOT 489 (Mum) (supra), it has been observed, inter alia, that m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken by the co-ordinate bench in the case of M/s S.P. Cold Storage, Raipur in ITA Nos. 142 to 147/BLPR/2012 order dated 30th October 2015. The relevant findings read as under: "We have carefully considered the submissions and perused the records. We find that the AO can initiate action u/s 153 A where a search is initiated u/s 132 or hooks of accounts, other documents or any assets are requisitioned u/s 132A. In this case no search was conducted at the business premises of the assessee firm. Search was conducted at the premises, which happens to be the residence of the partners of the assessee firm. No books of accounts. Documents, etc. relating to the firm was found during that search. No statement of the partners of the firm was recorded. No requisition was made u/s 132A of the I,T. Act. There is no evidence that notice of search was ever issued on the partner: On the same date i.e. 16th July, 2007 a survey operation was conducted u/s 133A at the business premises of the assessee firm. In pursuant of survey operation, statement of partners was recorded. The survey operation continued from 16th July, 2007 to 19t! July, 2007 and various books, documents, papers etc. were fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other case, they may be different. A premise to be searched has to be properly specified in the ''. arrant. Unless all the particulars are contained in a warrant, the warrant cannot be said to be complete. Therefore, a warrant issued in respect of one premises owned by a different person (in the present case PNB, Kanpur owning locker No. 187) cannot authorize the officers to search another premises. I n the present case, locker No. 150, P.N.B., Bahraich is a different premise and therefore search of locker No. 187, P.N.B., Swaroop Nagar, Kanpur cannot be said to continue in respect of locker No. 150, P.N.B., Bahraich. A satisfaction for issuance of warrant has to be necessarily mention all the above important ingredients and, therefore, one warrant for search is specific to a person searched, the premises and its owner. 9. A warrant issued in respect of one premise cannot be valid to search another premises. If the authorities intend to search another premise, they will have to issue another warrant after recording satisfaction as per law. Our view is supported by the provisions of section 132(1) which clearly provides that though warrant of authorization can be issued in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011. 24. Share holders of GFPL were also foreign entities, namely Shri Amit Grover, Princgle Security Pvt Ltd, and, therefore, foreign remittances were approved by the RBI vide approval dated 08.08.3011. Shares were purchased by M/s Peakwood Realty Pvt Ltd. The source of funds with M/s Peakwood Realty Pvt Ltd for such investment is Rs. 175 crores from M3M India Holdings [assessee], through M/s Innovative Realtech Pvt Ltd. The investment of M/s Peakwood Realty Pvt. Ltd in F.Y. 2011-12 was 46,14,860 shares of KMPL amounting to Rs. 97,62,64,760/- and advance to KMPL was Rs. 21,70,53,983/- and in F.Y. 2012-13, advance to GBPL was Rs. 29,86,556/- and investment was 36 2420 shares of GBPL amounting to Rs. 14,13,43,804/- totaling to Rs. 1,33,76,49,103/-. 25. These transactions are duly recorded in the books of account and there is no dispute whatsoever. The only allegation of the Revenue is that apart from the above payment of alleged consideration of Rs. 62.89 crores is paid in cash for purchase of shares of two companies, namely KMPL and GBPL by Peakwood Realty Pvt Ltd. 26. In this entire factual matrix, we fail to understand why the Assessing Officer has made the impugned addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utgutia [supra] squarely apply. 33. Interestingly, there is no adverse inference drawn in respect of sellers of shares i.e. KMPL and GBPL though the impugned addition has been made on the basis of pure surmises and conjectures nothing has been done in the hands of the sellers of the shares. 34. As mentioned elsewhere, shareholders of GBPL and KMPL are NRI and, therefore, Peakwood Realty Pvt Ltd had to take 'No Objection Certificate' for transfer of shares from RBI which was duly obtained by it. 35. It appears that the Assessing Officer has proceeded with a preconceived mind without realizing that the documents which he is referring to is for making addition neither has names of the sellers of the shares nor name of the assessee. Therefore, following the ratio laiddown by the Hon'ble Delhi High Court [supra], this addition deserves to be deleted. 36. Even on merits of the case, the addition cannot be sustained as the Assessing Officer has made the addition u/s 69 of the Act which has been modified by the ld. CIT(A) and sustained the addition u/s 69 of the Act. 37. A revisit to the facts of the case would clear the quarrel. 38. The assessee remitted Rs. 175 crores on 03.02. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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