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TMI Blog2023 (4) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... y merit and cannot be sustained. No distinguishing feature in the facts of the present case and that of A.Y. 2011-12 [supra] has been pointed by the assessee. In such a situation we for the reasons given by the co-ordinate bench while deciding the appeal of the assessee for A.Y. 2011-12 and for similar reasons restore the issue back to the CIT(A). Since CIT(A) had not adjudicated the grounds on merits and since the matter is being restored back to the CIT(A). - ITA.No.2269/Del./2018, Cross Objection No.70/Del./2022 Arising out of ITA.No.2269/Del./2018 - - - Dated:- 31-3-2023 - Shri Anil Chaturvedi, Accountant Member And Shri N.K Choudhry, Judicial Member For the Revenue : Ms. Sarita Kumari, CIT-DR For the Assessee : Ms. Shweta Bansal, CA ORDER PER ANIL CHATURVEDI, A.M. : This appeal filed by the Revenue and the Cross Objection filed by the Assessee are directed against the Order of the Ld. CIT(A)-XXVI, New Delhi, dated 03.01.2018 in Appeal No.10531/16-17 relating to the A.Y. 2010-11. 2. The relevant facts as culled out from the material on record are as under :- 3. Assessee is a company AO has noted that a search and seizure operation u/s. 132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of share capital which was subscribed at abnormally high premium which lacked genuineness on their part. AO thereafter for the reasons stated in the order held the amount of Rs. 4,25,00,000/- received by the assessee to be unexplained cash credit and made its addition u/s. 68 of the Act. 9. Aggrieved by the order of AO, assessee carried the matter before Ld. CIT(A). 10. Before CIT(A), assessee challenged the framing of assessment u/s. 153A r.w.s 143(3) and stating it to be without jurisdiction. CIT(A) held the proceedings u/s. 153A to be illegal arbitrary and without jurisdiction and the relevant findings of the CIT(A) are as under:- 5.3 Grounds no. 2, 3 4 pertain to the issue that no search u/s 132 was undertaken in this case, I have perused the search warrant sent by the A vide letter dt. 01/12/2017 which though contained the name of the assessee yet it was served at the address Plot No, 237-238, UdyogVihar, Phase-I, Gurgoan . This is the address of factory premises of Ms Heritage Beverages Pvt Ltd. It is a fact that the address of the assessee was 201H, Gautam Nagar, New Delhi . Earlier the address of the assessee was H-2/56, Mahavir Enclave, New Delhi. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut jurisdiction and hence annulled the assessment order and therefore not decided the grounds on merit. We find that identical issue arose in the case of assessee for A.Y. 2011-12 before the co-ordinate bench of Tribunal. The co-ordinate bench of Tribunal vide order dated 26.07.2022 (in ITA No. 2270/Del/2018) decided the issue by observing as under:- 4. Grounds of the revenue pertains to the adjudication by the ld. CIT(A) that no search u/s 132 was undertaken in this case . 5. The operative para of the order of the Ld. CIT(A) is as under: I have perused the search warrant sent by the AO vide letter dated 01.12.2017 which though contained the name of the assessee yet it was served at the address Plot No, 237-238, Udyog Vihar, Phase-I , Gurgoan . This is the address of factory premises of M/s Heritage Beverages Pvt. Ltd. It is a fact that the address of the assessee was 201H , Gautam Nagar , New Delhi . Earlier the address of the assessee was H-2/56, Mahavir Enclave, New Delhi. The assessee has changed its address from H-2/56, Mahavir Enclave, New Delhi to 201-H, Gautam Nagar, New Delhi on 31.12 .2011, i.e. , much before than the date of search. The same is evident f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Plot No. 237- 238, Udyog Vihar , Phase-1, Gurgaon (Specify particulars of the building /place/ vessel/ vehicle/ aircraft); This is to authorize and required you -as per overleaf [Name of the Deputy Director or of the Deputy Commissioner or of the Assistant Director or of the Assistant Commissioner or the Income Tax Officer] a. To enter and search that building/place/vessel/aircraft. 7. The said warrant No. 4859 has been duly seen and signed by Shri Pradeep Kumar, Director of MSG Finance India Pvt. Ltd. and also by two independent witnesses. 8. A bare reading of the warrant proves that it has been issued after due satisfaction that summons under sub- Section (1) of Section 131 of the Income Tax Act, 1961 are issued. The assessee would produce the documents as required. The warrant is also based on the satisfaction that the assessee company is in position of material which has not been disclosed for the purpose of Income Tax Act, 1961. The warrant reveals that the issuing authority has reason to suspect that such valuable things are kept and are to be found at Plot No.237/238, Udyog Vihar, Phase-1, Gurgaon and authorized the Officers of the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamentals of issue of warrant of authorization u/s 132. It is not necessary that warrant has to be issued only at /on the premises of the registered office of the company or corporate office, factory or godown but a warrant can be authorized to any other place where the issuing authority satisfies and reasons to suspect that the material/evidences pertaining to the assessee have been kept and are to be found. The ld. CIT(A) ignored the provisions of Section 132(1), the proviso under clause (B), provisions of (1A) which clearly deal with the jurisdiction, the premises and the actions that can be taken by the revenue authorities. 14. Hence, we hold that the decision of the ld. CIT(A) that no search was conducted on the assessee and summarily nullifying the proceedings u/s 153A as exfacie illegal is devoid of any merit and cannot be sustained. 15. The ld. CIT(A) is hereby directed to adjudicate the grounds on merits of the case. 14. Before us no distinguishing feature in the facts of the present case and that of A.Y. 2011-12 has been pointed by the assessee. In such a situation we for the reasons given by the co-ordinate bench while deciding the appeal of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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