TOPLINE WRITING INSTRUMENTS P. LTD, GOA V. ACIT CEN CIR 41, MUMBAI

ITA 234/MUM/2011

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0584 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 04-03-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 10-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: H S RAHEJA
• Keywords: Bogus purchase; Search and seizure; Question of law; Validity of assessment; Competent authority; Block assessment; Reason to believe
• Section: 143(3); 133A; 153A; 205; 131; 148; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA NO. 233, 234, 235, 236, 237 & 239 /MUM/201 1 ( A. YS : 2002 - 03, 2003 - 04,2004 - 05, 2006 - 07, 2007 - 08 & 2005 - 06 ) & ITA NO. 4738, 4739, 4740, 4741,4742 & 4743 /MUM/201 3 (A. YS: 2002 - 03 TO 2007 - 08) M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. L/71, VERNA ELECTRONICS CITY, VERNA , GOA PAN: AAACT 5177 E V. A .C.I.T. CENTRAL CIRCLE - 41 AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 ( ASSESSEE ) (RESPONDENT) ASSESSEE BY : SHRI H.S. RAHEJA & SHRI PRATIK JAIN DEPARTMENT BY : SHRI RAJESH DAMAR SHRI CHAUDHARY ARUN KUMAR SINGH DATE OF HEARING : 26 .10.2018 DATE OF PRONOUNCEMENT : 30 .11 .2018 O R D E R PER BENCH 1. ASSESSEE HAS RAISE D THE FOLLOWING COMMON GROUNDS IN ITS APPEALS FILED FOR THE ASSESSMENT YEARS 2002 - 03 TO 2007 - 08 IN ITA.NOS. 233 TO 239/MUM/2011 AGAINST THE COMMON ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 38, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 30.09.2010 AS UNDER: - 2 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. 1. ON THE FACTS AND CIRCUMSTANCES OF THE ASSESSEE 'S CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DIRECTING THE ID. AO TO COMPUTE THE DISALLOWANCE OF BOGUS PURCHASES BY TAKING INTO ACCOUNT ALL THE INTERPOLATED ENTRIES IN I THE INWARD REGISTERS AS WELL AS THE PURCHASE BILLS WHICH DO NOT BEAR THE DETAILS OF TRANSPORTATION DESPITE THE FACT THAT DURING THE COURSE OF SEARCH NO MATERIAL / EVIDENCE WAS FOUND INDICATING THAT THE PURCHASE MADE FROM M/S. VERTEX CHEMICAL ARE NOT GENUINE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE ASSESSEE 'S CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DIRECT ING THE ID. AO TO COMPUTE THE DISALLOWANCE OF BOGUS PURCHASES BY TAKING INTO ACCOUNT ALL THE INTERPOLATED ENTRIES IN THE INWARD REGISTERS AS WELL AS THE PURCHASE BILLS WHICH DO NOT BEAR THE DETAILS OF TRANSPORTATION. 3. ON THE FACTS AND CIRCUMSTANCES OF TH E ASSESSEE 'S CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN GIVING THE ABOVE DIRECTION DESPITE THE FACT THAT THE VENDOR FROM WHOM PURCHASES WERE MADE HAVE ADMITTED THAT THEY IN FACT SUPPLIED THE GOODS TO THE ASSESSEE IN HIS DEPOSITIO N BEFORE THE ID. AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. THE ASSESSEE CRAVE, LEAVES TO ADD, AMEND, ALTER, MODIFY AND OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL, WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER . 2. ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND CHALLENGING THE JURISDICTION OF THE ASSESSING OFFICER IN PASSING THE ORDER U/S 143 R . W . S 153A FOR ALL THESE ASSESSMENT YEAR S AS UNDER: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE ASSESSEE S CASE AND IN LAW, THE LD.AO ERRED IN PASSING ORD ER UNDER SECTION 143(3) R.W.S. 153A IN EXCESS OF JURISDICTION AND T HEREFORE IT IS ILLEGAL, BAD IN LAW AND VOID - AB - INITIO. 3. ASSESSEE FURTHER RAISED ONE MORE ADDITIONAL GROUND IN RESPECT OF THE CONFIRMATION OF DISALLOWANCE OF EMPLOYEES CONTRIBUTION TO PF AND ES I U/S. 2(24)(X) R . W .S 36 (1)(VA) OF THE ACT. 4. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS BASED IN GOA AND DOES NOT HAVE ANY ESTABLISHMENT IN MUMBAI. THERE WAS A S EARCH AT THE BUSINESS PREMISES OF M/S. KORES (I NDIA ) LIMITED ON 19 TH SEPTEMBER 2006. THERE 3 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. WAS A SURVEY ACTION UNDER SECTION 133 A AT THE BUSINESS PREMISES AT GOA IN THE CASE OF THE ASSESSEE . THERE APPEARS TO BE NO SEARCH ACTION IN THE BUSINESS PREMISES OF THE ASSESSEE IN GOA. THE ASSESSING OFFICER AT MUMBAI ISSUED NOTICE UNDER SECTION 153A ON 29 .04.2008 IN RESPONSE TO WHICH THE ASSESSEE FILED RETURN S DECLARING NIL INCOME . THE ASSESSING OFFICER COMPLETED THE ASSESSMENT S U/S. 143 R.W.S. 153A HOLDING THAT THE PURCHASES MADE BY THE ASSESSEE FROM M/S. VERTEX CHEMICALS OF MUMBA I ARE BOGUS . FOR COMING TO THE CONCLUSION THAT THE PURCHASES ARE BOGUS THE ASSESSING OFFICER HELD THAT S INCE CERTAIN SIGNED CHEQUES OF THE ASSESSEE WERE FOUND IN THE OFFICE PREMISES OF M/S. KORES (I NDIA ) LIMITED IN MUMBAI AND T HAT SHRI S.N. SHAH VICE PRESIDENT ( PURCHASE ) OF M/S. KORES (INDIA) LIMITED WAS NOT ONLY PLACING ORDERS ON BEHALF OF THE ASSESSEE WOULD ALSO SIGNING THE CHEQUES IN RESPECT OF THE ASSESSEE'S BANK ACCOUNT IN MUMBAI . ASSESSING OFFICER ALSO OBSERVED T HAT IN THE INWARD REGIS TERED MAINTAINED BY THE ASSESSEE AT GOA CERTAIN ENTRIES OF PURCHASES MADE FROM M/S. VERTEX CHEMICALS WERE INSERTED, AND THE PARTNER OF M/S. VERTEX CHEMICALS COULD NOT PROVE TRANSPORTATION OF THE RAW MATERIAL . SHRI RAVI KANODIA COULD NOT SATISFACTORILY EXP LAIN THE REASON FOR THE INSERTION OF PURCHASES FROM M/S. VERTEX CHEMICALS IN THE INWARD REGISTER . IT WAS HELD THAT T HE BOOKS OF ACCOUNT OF THE ASSESSEE WERE NOT RELIABLE AND HENCE THE PURCHASES FROM M/S. VERTEX CHEMICALS ARE BOGUS. 4 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. 5. ON APPEAL T HE LD.CIT (A) HELD THAT AFTER GOING THROUGH THE DETAILS AND THE INWARD PURCHASE REGISTER THE INTERPOLATION AND LACK OF DETAILS OF TRANSPORTATION IS NOT APPLICABLE TO THE ENTIRE PURCHASES MADE FROM M/S. VERTEX CHEMICALS . HE VERIFIED THE INWARD REGISTER AND CAME TO A CONCLUSION THAT ONLY THOSE ENTRIES IN THE INWARD REGISTER WHERE THERE WAS INTERPOLATION AND WHICH DID NOT BEAR DETAILS OF TRANSPORTATION COULD BE DISALLOWED. LD.CIT(A) ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO VERIFY THE SAME AND RE COMPUTE DISALLOWANCE. 6. ASSESSEE FILED APPEALS AGAINST THIS COMMON ORDER OF THE LD.CIT(A) CHALLENGING THE ADDITIONS/DISALLOWANCES SUSTAINED BY THE LD.CIT(A). BY WAY OF ADDITIONAL GROUND, ASSESSEE CHALLENGES THE ASSESSMENT MADE U/S. 143(3) R.W.S 153A OF THE ACT WITHO UT JURISDICTION AND T HEREFORE BAD IN LAW. 7. LD. COUNSEL FOR THE ASSESSEE REFERRING TO FIRST PARA OF THE ASSESSMENT ORDER SUBMITTED THAT , IT IS THE FINDING OF THE ASSESSING OFFICER THAT SEARCH AND SEIZURE ACTION WAS CARRIED OUT IN THE BUSINESS PREMISES OF THE M/S. KORES (INDIA) LIMITED . , AT KORES HOUSE, WORLI, MUMBAI ON 19.09.2006 ALONG WITH ITS ASSOCIATE COMPANIES INCLUDING ASSESSEE. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE COMPANY IS NEITHER GROUP CONCERN NOR ASSOCIATE CONCERN OF M/S. KORES (INDIA) LTD. THE 5 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. LD.COUNSEL FOR THE ASSESSEE FURTHER REFERRING TO PARA NO.5 AT PAGE NO.2 OF THE ASSESSMENT ORDER SUBMITS THAT , THERE IS A CLEAR CONTRADICTORY FINDING BY THE ASSESSING OFFICER TH AT THERE WAS A SURVEY U/S.132 AT THE BUSINESS PREMISES OF THE ASSESSEE ON 19.09.06 ALONG WITH M/S. KORES (INDIA) LIMITED . AT THE SAME TIME ASSESSING OFFICER ALSO GIVEN FINDING THAT SURVEY U/S. 133A WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE AT VERNA GOA ON 19.09.2006. LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THIS IS A CLEAR CUT CONTRADICTORY FINDING BY THE ASSESSING OFFICER. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THERE HAS NEVER BEEN A SEARCH IN THE CASE OF THE ASSESSEE IN GOA BUT I T IS ONLY A SURVEY U/S.133A OF THE ACT HAD TAKEN PLACE ON 19.09.2006. LD. COUNSEL FOR THE ASSESSEE FURTHER REFERRING TO PARA NO. 5 SUBMITS THAT IT IS THE FINDING OF THE LD. ASSESSING OFFICER THAT DURING THE COURSE OF SURVEY AT THE BUSINESS PREMISES AT GOA INWARD RAW MATERIAL REGISTERS BELONGING TO THE ASSESSEE COMPANY WERE IMPOUNDED U/S. 131 OF THE ACT ON 19.09.2006. LD. COUNSEL FOR THE ASSESSEE T HEREFORE SUBMITS THAT BASED ON THESE IMPOUNDED REGISTERS THE ASSESSING OFFICER CAME TO KNOW THAT THE ASSESSEE INFLATED PURCHASES AND MADE DISALLOWANCE ACCORDINGLY. LD. COUNSEL FOR THE ASSESSEE FURTHER REFERRING TO PARA NO.6 OF THE ASSESSMENT ORDER SUBMITS THAT IT IS THE FINDING OF THE ASSESSING OFFICER THAT IN THE COURSE OF THE ASSESSMENT PROCEEDINGS STATEMENT OF OATH WAS RECORDED FROM SHRI S .N 6 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. SHAH IN THE COURSE OF THE SEARCH IN THE CASE OF M/S. KORES GROUP. IT IS ALSO THE FINDING OF THE ASSESSING OFFICER THAT DURING THE COURSE OF THE SURVEY IN THE CASE OF ASSESSEE COMPANY A STATEMENT OF SHRI RAVI KANODIA , WHOLE TIME DIRECTOR OF THE ASSESSEE COMPANY WAS RECORDED. THEREFORE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON A READING OF THE ENTIRE ASSESSMENT ORDER THE ASSESSING OFFICER REFERS TO SEARCH MADE IN THE CASE OF THE M/S. KORES GROUP AND SURVEY MA DE IN THE CASE OF THE ASSESSEE IN THE PREMISES OF GOA. THE BOOKS WERE IMPOUNDED IN THE COURSE OF THE SURVEY U/S. 133A AND THERE HAS BEEN NO SEARCH U/S. 132 OF THE ACT IN THE CASE OF THE ASSESSEE AND NO INCRIMINATING MATERIAL WERE SEIZED IN THE COURSE OF T HE SEARCH , IN THE CASE OF THE ASSESSEE. LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT I T I S NOT KNOWN HOW THE ASSESSING OFFICER AT MUMBAI HAS GOT JURISDICTION OVER THE ASSESSEE WHO IS BASED IN GOA AND DOES NOT HAVE ANY BRANCH OR OFFICE PREMISES IN MUMBAI. IN ABSENCE OF ANY SEARCH AN ASSESSMENT MADE U/S 143(3) R.W.S 153A IS BAD ON LAW AND INVALID. THE ASSESSEE SUBMITS THAT THERE WAS NO WARRANT IN ITS NAME AND HENCE AN ASSESSMENT MADE U/S 143(3) R.W.S 153A IS ILLEGAL AND ACCORDINGLY NO ADDITIONS MADE THERE UNDER CAN BE SUSTAINED. 8. COMING TO THE MERITS OF THE CASE LD . COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ASSESSEE IS IN THE BUSINESS OF MANUFACTURING CARBON PAPER AND STATIONERY ITEMS AND A LMOST ALL THE PRODUCTION OF THE ASSESSEE 7 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. IS SUPPLIED TO M/S. KORES (INDIA) LIMITED . THE ASSESSEE IS BASED IN GOA AND M/S. KORES ( INDIA ) PRIVATE LTD IS BASED IN MUMBAI . T HE ASSESSEE FOR THE SAKE OF CONVENIENCE AND TO ENSURE THAT THE MANUFACTURED ITEMS WERE NOT REJECTED ON ACCOUNT OF QUALITY REQUESTED SHRI S.N. SHAH OF M/S. KORES (INDIA) LIMITED TO ENSURE THAT THE RAW MATERIAL PURCHASED BY THE ASSESSEE WAS ACCEPTABLE. FOR THAT PURPOSE, SHRI S.N. SHAH WAS AUTHORIZED TO PLACE ORDERS OF THE RAW MATERIAL SO THAT THE FINAL PRODUCT WAS NOT REJECTED. IT IS SUBMITTED THAT S INCE M/S. KORES (INDIA) LIMITED WAS BASED IN MUMBAI IT WAS BUSINESS CONVENIENCE TO HAVE A BANK ACCOUNT IN MUMBAI SO THAT THE SALE PROCEEDS COULD BE CREDITED IMMEDIATELY AND ALSO PAYMENT COULD BE MADE TO THE SUPPLIERS OF RAW MATERIAL FROM MUMBAI ITSELF THUS SAV ING TIME. SHRI S.N. SHAH WAS THEREFORE IS AN AUTHORIZED SIGNATORY TO THE ASSESSEE 'S BANK ACCOUNT IN MUMBAI. THEREFORE, T HIS JUSTIFIES THE CHEQUES OF THE ASSESSEE FOUND IN THE PREMISES OF M/S. KORES (INDIA) LIMITED . IT IS SUBMITTED THAT N EITHER FROM THE STATEMENT OF SHRI S.N. SHAH OR THAT OF SHRI JAYANT JETLY OF M/S. VERTEX CHEMICALS , ASSESSING OFFICER POINTED OUT ANY CONTRADICTION TO SHOW THAT THE PURCHASES ARE BOGUS. THE STATEMENT OF SHRI MANOJ MEMANI THE CASHIER HEAD OF M/S. KORES (INDIA) LIMITED ALSO DOES NOT IN ANY WAY IMPLICATE THE ASSESSEE . THE ALLEGATION OF INTERPOLATION IN THE INWARD REGISTER HAS BEEN USED BY THE ASSESSING OFFICER TO MERELY CREATE SUSPICION SINCE HE IS NOT IN ANY WAY SHOWN THAT THE 8 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. CONSUMPTION OF RAW MATERIAL IS EXCESSIVE . HE HAS NOT GOT ANY COMPARATIVE INSTANCE ON RECORD TO PROVE THAT THE CONSUMPTION IS EXCESSIVE OR UNJUSTIFIED. 9. IT IS FURTHER SUBMITTED THAT I N NO PART OF ANY STATEMENT RECORDED BY THE ASSESSING OFFICER HAS ANY DEPONENT STATED THAT THE PURCHAS ES ARE BOGUS. THE FACTUAL FINDING OF THE LD. CIT ( A ) THAT THE ALLEGATION OF INTERPOLATION AND LACK OF DETAILS OF TRANSPORTATION IS NOT APPLICABLE TO ENTIRE PURCHASES MADE FROM M/S. VERTEX CHEMICALS SUPPORTS THE CASE OF THE ASSESSEE THAT THE PURCHASE S ARE GENUINE. THE ASSESSEE HAS GIVEN QUANTITY DETAILS AND QUANTITY TALLY IN THE AUDIT REPORT FILED WITH THE ORIGINAL RETURN WHICH HAS NOT BEEN DISPROVED BY THE ASSESSING OFFICER. IN RESPECT OF TRANSPORTATION THE PARTNER OF M/S. VERTEX CHEMICALS HAS STATED THA T THEY HAVE USED THEIR OWN TEMPOS FOR TRANSPORTATION AND HENCE THE ALLEGATION OF THE ASSESSING OFFICER DOES NOT HOLD GOOD THAT THE PURCHASES ARE BOGUS. 10. THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING DECISIONS FOR THE PROPOSITION THAT IF THERE IS NO SEARCH W ARRANT , THE SEARCH ASSESSMENT MADE IS NOT VALID , BAD IN LAW AND VOID AB - INITIO : - (I) CIT V. RAMESH D. PATIL [362 ITR 492 (GUJ)] (II) CIT V. JOLLY FANTASY WORLD LTD [373 ITR 530 (GUJ). ] . (III) SHIKSHA O ANUSANDHAN V. CIT [336 ITR 112 (ORISSA) ]. (IV) CIT V. SMT PRIYANKA SINGHANIA [ITA.NO. 163/2015 DATED 02.09.2015 OF HON'BLE DELHI HIGH COURT]. 9 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. (V) SMT RA JKUMARI CHANDAK V. ACIT [382 ITR 312 (MADRAS)] (VI) CIT V. M/S. J.M. TRADING CORPORATION [ITA.NO. 276, 693 & 852 OF 2009 DATED 29.06.2009 OF HON'BLE BOMBAY HIGH COURT] . (VII) M/S. BALAJI YARN LTD V. DCIT [ITA.NO. 6199 & 6201/MUM/2009 DATED 23.05.2013 OF ITAT MUMBAI G' BENCH]. (VIII) SMT NASREEN YUSUF DHANANI V. ACIT [ (2009)118 ITD 0133] . (IX) CIT V. ANIL KUMAR CHADHA [ 55 TAXMANN.COM 293 (ALLAHABAD)]. (X) JCIT V. LATIKA V. WAMAN [01 SOT 535 (MUM)] . 11. ON THE OTHER HAND, LD. DR COMING TO THE ADDITIONAL GROUNDS OF APPEAL SUBMITTED THAT , THE ASSESSING OFFICER HAS CLEARLY STATED IN THE ASSESSMENT ORDER THAT THERE IS A SEARCH IN THE CASE OF M/S. KORES GROUP AS WELL AS THE ASSESSEE, AND THE CONTENTION OF THE ASSESSEE THAT THERE WAS NO SEARCH CONDUCTED IN THE CASE OF ASSESSEE IS NOT CORRECT. LD. DR REQUESTED THE TRIBUNAL TO PERMIT TO FILE A COPY OF THE SEARCH WARRANT, SINCE IT WAS ALREADY RETURNED TO THE ASSESSING OFFICER TO FURNISH THE SAME. COMING TO THE MERITS OF THE CASE LD. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. LD. DR ALSO REFERRING TO THE STATEMENTS OF SHRI S .N. SHAH, SHRI JAYANT J. JETLY AND CASHIER SHRI MANOJ MEMANI SUBMITTED THAT ASSESSEE INFLATED PURCHASES AND ALSO GENERATED HUGE CASH AND IT IS EVIDENT FROM THE STATEMENTS RECORDED FROM THESE PERSONS. LD. DR SUB MITTED THAT M/S.VERTEX CHEMICALS RAISED SALES BILLS IN THE NAME OF THE ASSESSEE BUT MATERIALS WERE NOT SU PPLIED TO THE ASSESSEE AND THE SALES BILLS WERE BOOKED BY THE ASSESSEE BY INFLATING THE PURCHASES. HE STRONGLY 10 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. PLACED RELIANCE ON THE ORDERS OF THE AU THORITIES BELOW IN ADDING THE PURCHASES AS BOGUS. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ASSESSING OFFICER IN THE ASSESSMENT ORDER GIVEN A FINDING THAT THERE WAS A SEARCH CARRIED OUT IN THE BUSINESS PREMISES OF M /S. KORES (INDIA) LIMITED ON 19.09.2006 ALONG WITH ITS BUSINESS ASSOCIATE COMPANIES INCLUDING THE ASSESSEE . HOWEVER, THE ASSESSEE IS DISPUTING THAT ASSESSEE COMPANY IS NOT ASSOCIATED WITH M/S. KORES GROUP. WE FIND FROM PARA NO.1 OF THE ASSESSMENT ORDER TH AT , ASSESSING OFFICER ALSO GIVEN A FINDING THAT A SURVEY U/S 133A OF THE ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE SITUATED AT L - 70, VERNA INDUSTRIAL ESTATE, VERNA, GOA. WE ALSO FIND FROM PARA NO.5 OF THE ASSESSMENT ORDER THAT THERE IS A CLEAR CONTRADICTORY FINDING GIVEN BY THE ASSESSING OFFICER THAT THERE WAS A SEARCH IN THE CASE OF THE ASSESSEE AT BUSINESS PREMISES OF THE ASSESSEE ALONG WITH M/S. KORES GROUP AND AT THE SAME TIME THERE WAS A FIN DING THAT THERE WAS SURVEY U/S. 133A AT THE BUSINESS PREMISES OF THE ASSESSEE AT VERNA, GOA ON 19.09.2006. IT IS ALSO THE FINDING OF THE ASSESSING OFFICER THAT DURING THE COURSE OF THE SURVEY A T THE BUSINESS PREMISES AT GOA INWARD RAW M ATERIALS REGISTERS BELONGING TO THE ASSESSEE COMPANY WERE IMPO UNDED U/S.131 OF THE ACT ON 19.09.2006. ASSESSING OFFICER BASED ONLY ON THIS INWARD RAW MATERIALS REGISTERS 11 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. IMPOUNDED IN THE COURSE OF THE SURVEY CAME TO THE CONCLUSION THAT PURCHASES MADE BY THE AS SESSEE COMPANY FROM M/S. VERTEX CHEMICALS DURING THE YEAR WERE NOT GENUINE AND ONLY ENTRIES WERE MADE TO INFLATE THE PURCHASES. 13. IN PARA NO.6 OF THE ASSESSMENT ORDER THE ASSESSING OFFICER REFERS TO THE STATEMENT OF OATH RECORDED FROM SHRI S.N. SHAH IN THE COURSE OF THE SEARCH IN THE CASE OF M/S. KORES GROUP. SIM ILARLY, HE ALSO REFERS TO THE STATEMENT OF SHRI RAVI KANODIA , WHOLE TIME DIRECTOR OF THE ASSESSEE COMPANY WHICH WAS RECORDED DURING THE COURSE OF THE SURVEY IN THE CASE OF ASSESSEE. ALL THESE FINDINGS GOES TO SHOW THAT THERE WAS A SURVEY IN THE CASE OF TH E ASSESSEE U/S. 133A OF THE ACT AND ALSO SEARCH AND SEIZURE PROCEEDINGS U/S. 132 IN THE CASE OF M/S. KORES GROUP AND THERE IS A CONTRADICTORY FINDING THAT THERE IS A SURVEY AS WELL AS SEARCH IN THE CASE OF ASSESSEE BY THE ASSESSING OFFICER. IN ORDER TO AS CERTAIN THE FACT AS TO WHETHER THERE WAS ANY SEARCH IN THE CASE OF THE ASSESSEE ON 05.07.2016 THE BENCH DIRECTED THE LD. DR TO PRODUCE COPY OF SEARCH WARRANT AND PANCHANAMA AND THE MATTER WAS ADJOURNED TO 14.07.2016. ON 14.07.2016 THE BENCH DIRECTED THE L D. DR TO OBTAIN COPY OF WARRANT AND COPY OF PANCHANAMA AND ALSO DIRECTED TO INFORM THE ASSESSING OFFICER TO BE PRESENT ON THE NEXT DATE OF HEARING WITH CASE RECORDS, AND THE CASE WAS ADJOURNED TO 08 . 09.2016. ON 08.09.2016 LD. DR SOUGHT TIME WHICH 12 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. WAS GRAN TED TILL 21.03.2017. AS NOBODY APPEARED ON 21.03.2017 ON BEHALF OF ASSESSEE THE CASE S WERE HEARD EXPARTE AND ON FILING MISCELLANEOUS APPLICATION S THE CASES WERE RECALLED AND POSTED FOR HEARING ON 25.06.2018 AND FINALLY THE MATTERS WERE HEARD ON 27.06.2018 AND 26.10.2018. 14. WE FIND FROM THE RECORD THAT LD. DR HAD WRITTEN A LETTER DATED 05.07.2016 TO D.C.I.T (CENTRAL) - 7(2) , MUMBAI TO FURNISH COPY OF WARRANT AND COPY OF PANCHANAMA, ONE MORE LETTER WAS WRITTEN ON 14.07.2016 TO PR.CIT (CENTRAL) - 4 , MUMBAI INTIMATI NG THAT THE TRIBUNAL REQUIRED COPY OF WARRANT AND COPY OF PANCHANAMA AND ALSO TO INFORM THE ASSESSING OFFICER TO BE PRESENT ON THE NEXT DATE OF HEARING WITH RECORDS. INSPITE OF THESE OPPORTUNITIES THE REVENUE COULD NOT PRODUCE THE COPY OF WARRANT AND COPY OF PANCHANAMA TO ESTABLISH THE FACT THAT THERE IS IN FACT A SEARCH AND SEIZURE PROCEEDINGS U/S. 132 OF THE ACT WAS CARRIED OUT IN THE CASE OF THE ASSESSEE BUT NOT MERE SURVEY U/S. 133A OF THE ACT. IN THE ABSENCE OF SEARCH WARRANT AND COPY OF PANCHANAMA IN THE CASE OF THE ASSESSEE AND IN VIEW OF THE CONTRADICTORY FINDINGS BY THE ASSESSING OFFICER THAT THERE IS A SURVEY IN THE CASE OF THE ASSESSEE AND THERE IS A SEARCH IN THE CASE OF ASSESSEE AND TH ERE IS SEARCH IN THE CASE OF M/S. KORES GROUP , WE HOLD THAT THERE WAS ONLY SURVEY PROCEEDINGS CARRIED OUT IN THE CASE OF THE ASSESSEE U/S. 133A AND STATEMENTS WERE ALSO RECORDED ON OATH DURING 13 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. THE SURVEY PROCEEDINGS . IN THE COURSE OF SURVEY IN THE PREMISE S OF ASSESSEE AT GOA INWARD RAW MATERIAL REGISTERS BELONGING TO THE ASSESSEE WERE IMPOUNDED U/S. 131 OF THE ACT ON 19.09.2016 AS OBSERVED BY THE ASSESSING OFFICER AT PARA NO.5 AND THE PURCHASES WERE TREATED AS INFLATED AND BOGUS ONLY BASED ON THESE IMPOUND ED MATERIALS IN THE COURSE OF SURVEY. 15. WE FIND AN IDENTICAL ISSUE CAME UP BEFORE THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V . RAMESH D. PATIL (SUPRA) , WHERE THE ASSESSING OFFICER MADE CONTRADICTORY STATEMENTS WITH RESPECT TO ASSESSEE BEING SUBJECTED TO SEARCH AND IN SPITE OF SUFFICIENT OPPORTUNITIES PROVIDED BY THE TRIBUNAL, REVENUE COULD NOT PRODUCE SEARCH AUTHORIZATIONS. THEREFORE, THE TRIBUNAL CONCLUDED THAT IN THE ABSENCE OF SEARCH WARRANT THERE IS NO SEARCH CONDUCTED IN THE ASSESSEE , WHICH WAS AFFIRMED BY THE HON'BLE GUJARAT HIGH COURT OBSERVING AS UNDER: - HAVING HEARD THE LEARNED COUNSEL FOR THE PARTIES, WE FIND FROM THE RECORD THAT THE ASSESSING OFFICER HAD MADE CONTRADICTORY STATEMENTS WITH RESPECT TO THE ASSESSEE BEING SUBJECTED TO SEARCH. IN ONE ORDER, HE NOTED THAT NO SEARCH WARRANT WAS ISSUED AGAINST THE ASSESSEE, WHILE IN ANOTHER ORDER, HE RECORDED THAT NOT ONLY M/S.J.K.SECURITIES GROUP, BUT THE ASSESSEE WAS ALSO SUBJECTED TO SEARCH. TO CLEAR THIS CONFUSION, THE TRIBUNAL GAVE MULTIPLE O PPORTUNITIES TO THE REVENUE TO PRODUCE THE RECORD OF SEARCH AND AUTHORIZATION. DESPITE SUFFICIENT OPPORTUNITIES, THE REVENUE COULD NOT PRODUCE THE SAME. THE TRIBUNAL, THEREFORE, CONCLUDED THAT THERE WAS NO SEARCH WARRANT AGAINST THE ASSESSEE. THE TRIBUNAL, THEREFORE HELD THAT IN ABSENCE OF ANY SEARCH WARRANT, THE ORDERS PASSED BY THE ASSESSING OFFICER UNDER SECTION 153B OF THE ACT WERE INVALID. WE HAVE NO REASON TO INTERFERE WITH THE ORDER PASSED BY THE TRIBUNAL. SECTION 153A OF THE ACT PERTAINS TO ASSESSMENT IN CASE OF SEARCH OR REQUISITION. SUB - SECTION (1) THEREOF PROVIDES THAT NOTWITHSTANDING ANYTHING CONTAINED IN SECTIONS 139, 147, 148, 149, 151 O/TAXAP/347/2013 ORDER AND 153 OF THE ACT, IN CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTI ON 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER 31ST OF 14 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. MAY 2003, THE ASSESSING OFFICER SHALL ISSUE A NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH THE RETURN OF INCOME AND ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. SECTION 153B OF THE ACT PROVIDES FOR TIME LIMIT FOR COMPLETION OF ASSESSMENT UNDER SECTION 153A . LEARNED COUNSEL FOR THE ASSESSEE HAS RIGHTLY RELIED ON A DECISION OF THE ORISSA HIGH COURT IN THE CASE OF SIKSHA 'O' ANUSANDHAN V. CIT, 336 ITR 112 (ORISSA) IN WHICH IT WAS HELD THAT PROVISIONS OF SECTION 153A MAKE IT CLEAR THAT ONLY IN THE CASE OF A PERSON WHERE A SEARCH WAS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS WERE REQUISITIONED UNDER SECTION 132A AFTER 31.3.2002, THE ASSESSING OFFICER COULD AFTER ISSUING A NOTICE, ASSESS OR REASSESS THE TOTAL INCOME OF SUC H PERSON FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH WAS CONDUCED OR REQUISITION WAS MADE. IN THE PRESENT CASE, THE TRIBUNAL CAME TO A FACTUAL FINDING THAT NO SEARCH AUTHORIZATION WA S PRODUCED. THIS WAS NECESSARY BECAUSE THE ASSESSING OFFICER HAD MADE CONTRADICTORY REFERENCES TO THE ASSESSEE BEING SUBJECTED TO SEARCH OR NOT. IN ABSENCE OF A SEARCH AUTHORIZATION, THE TRIBUNAL CORRECTLY HELD THAT ASSESSMENT ORDERS UNDER SECTION 153A COU LD NOT HAVE BEEN PASSED. RELIANCE OF THE REVENUE TO SECTION 124(3) OF THE ACT WOULD BE OF NO AVAIL. SECTION 124 PERTAINS TO JURISDICTION OF THE ASSESSING OFFICERS. SUB - SECTION (1) THEREOF CONCERNS THE SITUATION WHERE, BY VIRTUE OF ANY ORDER OR DIRECTION UN DER SUB - SECTIONS (1) OR (2) OF O/TAXAP/347/2013 ORDER SECTION 120, THE ASSESSING OFFICER HAS BEEN VESTED WITH JURISDICTION OVER ANY AREA WITHIN THE LIMITS OF SUCH AREA. SUB - SECTION (2) OF SECTION 124 PROVIDES, INTER ALIA, THAT WHERE A QUESTION ARISES UNDER THE SAID SECTION AS TO WHETHER AN ASSESSING OFFICER HAS JURISDICTION TO ASSESS ANY PERSON, THE QUESTION SHALL BE DETERMINED BY THE DIRECTOR GENERAL OR THE CHIEF COMMISSIONER, ETC. SUB - SECTION (3) THEREOF PROVIDES AS UNDER: '(3) NO PERSON SHALL BE ENTITLED TO CALL IN QUESTION THE JURISDICTION OF AN ASSESSING OFFICER - (A) WHERE HE HAS MADE A RETURN UNDER SUB - SECTION (1) OF SECTION 115WD OR UNDER SUB - SECTION (1) OF SECTION 139, AFTER THE EXPIRY OF ONE MONTH FROM THE DATE ON WHICH HE WAS SERVED WITH A NOTICE UNDER SUB - SECTION (1) OF SECTION 142 OR SUB - SECTION (2) OF SECTION 115WE OR SUB - SECTION (2) OF SECTION 143 OR AFTER THE COMPLETION OF THE ASSESSMENT WHICHEVER IS EARLIER; (B) WHERE HE HAS MADE NO SUCH RETURN, AFTER THE EXPIRY OF THE TIME ALLOWED BY THE NOT ICE UNDER SUB - SECTION (2) OF SECTION 115WD OR SUB - SECTION (1) OF SECTION 142 OR UNDER SUB - SECTION ()1) OF SECTION 115WH OR UNDER SECTION 148 FOR MAKING OF THE RETURN OR BY THE NOTICE UNDER THE FIRST PROVISO TO SECTION 115WF OR UNDER THE FIRST PROVISO TO SE CTION 144 TO SHOW CAUSE WHY THE ASSESSMENT SHOULD NOT BE COMPLETED TO THE BEST OF THE JUDGMENT OF THE ASSESSING OFFICER, WHICHEVER IS EARLIER.' THUS, SECTION 124 OF THE ACT PERTAINS TO TERRITORIAL JURISDICTION OF AN ASSESSING OFFICER VESTED UNDER SUB - SECTI ON (1) OR (2) OF SECTION 120. AN OBJECTION TO SUCH JURISDICTION CAN BE RAISED IN TERMS OF SECTION 124(2). IN TERMS OF SUB - SECTION (3) OF SECTION 124, RIGHT TO RAISE SUCH OBJECTION SHALL BE FOREGONE BEYOND THE STAGES MENTIONED THEREIN. THE SAID PROVISIONS A RE CLEARLY CONCERNING WITH THE DISPUTE OF THE ASSESSEE WITH RESPECT TO THE TERRITORIAL JURISDICTION OF THE ASSESSING OFFICER AND HAS NO RELEVANCE IN SO FAR AS THE INHERENT JURISDICTION FOR PASSING AN ORDER OF ASSESSMENT UNDER SECTION 153A OF THE ACT IS CON CERNED, WHEN NO SEARCH 15 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. O/TAXAP/347/2013 ORDER AUTHORIZATION UNDER SECTION 132 WAS ISSUED OR REQUISITION UNDER SECTION 132A OF THE ACT WAS MADE. BEFORE CLOSING, WE NOTICE THAT IN TAX APPEAL NO.349 OF 2013, FOR THE ASSESSMENT YEAR 2005 - 06, THE REVENUE HAS AL SO RAISED AN ADDITIONAL QUESTION OF LIMITATION WHICH AROSE OUT OF THE JUDGMENT OF THE TRIBUNAL. HOWEVER, SINCE WE CONFIRM THE DECISION OF THE TRIBUNAL ON THE LIMITED QUESTION OF VALIDITY OF ASSESSMENT UNDER SECTION 153A OF THE ACT, THIS QUESTION NEED NOT B E GONE INTO AND IS KEPT OPEN . 16. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V. M/S. J.M. TRADING CORPORATION (SUPRA) HELD AS UNDER: - HEARD LEARNED COUNSEL FOR THE PARTIES. THE QUESTION SOUGHT TO BE RAISED IN THESE APPEALS IS RELATING TO THE CONDUCT OF THE SEARCH. THE ASSESSMENT MADE AGAINST THE ASSESSEE UNDER THE PROVISIONS OF SECTION 143(3) READ WITH SECTION 153A OF THE INCOME - TAX A CT. THE TRIBUNAL HAS CATEGORICALLY RECORDED A FINDING OF FACT OF INITIATION OF THE SEARCH THAT NON - COMPLIANCE OF THE ACT THE PROVISIONS OF THE ACT BY THE AUTHORISED OFFICER , SUCH SEARCHES ARE INVALID AND ILLEGAL . NO SEARCH WAS CONDUCTED AGAINST THE ASSES SEE AS THE PREMISES OCCUPIED BY THE ASSESSEE WERE NOT ENTERED UPON AND SEARCHED BY THE AUTHORIZED OFFICER. CONSIDERING THE FACTUAL ASPECT WHICH IS BASED ON THE APPRECIATION OF EV IDENCE AND NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THE PRESENT APPEALS. IN THIS VIEW OF THE MATTER, APPEALS STAND DISMISSED IN LIMINI FOR WANT OF SUBSTANTIAL QUESTION OF LAW WITH NO ORDER AS TO COSTS. 17. IN THE CASE OF CIT V. JOLLY FANTASY WORLD LTD (SUPRA) THE HON'BLE GUJARAT HIGH COURT HELD AS UNDER: - 10. LAW IN THIS REGARD IS CLEAR AND EXPLICIT. THE ONLY QUESTION WHICH ARISES FOR OUR CONSIDERATION IS AS TO WHETHER THE NOTICE DATED 06.02.1996 SATISFIES THE REQUIREMENTS OF SECTION 158BD OF THE ACT. THE SAID NOTICE DOES NOT RECORD ANY SATISFACTION ON THE PART OF THE ASSE SSING OFFICER. DOCUMENTS AND OTHER ASSETS RECOVERED DURING SEARCH HAD NOT BEEN HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION IN THE MATTER. 11. NO PROCEEDING UNDER SECTION 158BC HAD BEEN INITIATED. THERE IS, THUS, A PATENT NON - APPLICATION OF MIN D. A PRESCRIBED FORM HAD BEEN UTILIZED. EVEN THE STATUS OF THE ASSESSEE HAD NOT BEEN SPECIFIED. IT HAD ONLY BEEN MENTIONED THAT THE SEARCH WAS O/TAXAP/1254/2014 ORDER CONDUCTED IN THE MONTH OF NOVEMBER 1995. NO OTHER INFORMATION HAD BEEN FURNISHED. THE PRO VISIONS CONTAINED IN CHAPTER XIVB ARE DRASTIC IN NATURE. IT HAS DRACONIAN CONSEQUENCES. SUCH A PROCEEDING CAN BE INITIATED, IT WOULD BEAR REPETITION TO STATE, ONLY IF A RAID IS CONDUCTED. WHEN THE PROVISIONS ARE ATTRACTED, LEGAL PRESUMPTIONS ARE RAISED AGA INST THE ASSESSEE. THE BURDEN SHIFTS ON THE ASSESSEE. AUDITED ACCOUNTS FOR A PERIOD OF TEN YEARS MAY HAVE TO BE REOPENED. 12. A LARGE NUMBER OF DECISIONS OF VARIOUS HIGH COURTS HAVE BEEN CITED AT THE BAR. WE WOULD, AT THE OUTSET, REFER TO A DECISION OF THE GUJARAT HIGH COURT 16 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. IN KHANDUBHAI VASANJI DESAI AND OTHERS V. DEPUTY COMMISSIONER OF INCOME - TAX AND ANOTHER [(1999) 236 ITR 73]. THEREIN, IT WAS CLEARLY HELD : 'THIS PROVISION INDICATES THAT WHERE THE ASSESSING OFFICER WHO IS SEIZED OF THE MATTER AND HAS JURISDICTION OVER THE PERSON OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER S. 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS WERE REQUISITIONED UNDER S. 132A, HE SHALL PROCEED AGAINST SUCH OTHER PERSON AS PER THE PROVISIO NS OF CHAPTER XIV - B WHICH WOULD MEAN THAT ON SUCH SATISFACTION BEING REACHED THAT ANY UNDISCLOSED INCOME BELONGS TO SUCH OTHER PERSON, HE MUST PROCEED TO SERVE A NOTICE TO SUCH OTHER PERSON AS PER THE PROVISIONS OF S. 158BC OF THE ACT. IF THE ASSESSING OFF ICER WHO IS SEIZED OF THE MATTER AGAINST THE RAIDED PERSON REACHES SUCH SATISFACTION THAT ANY UNDISCLOSED INCOME BELONGS TO SUCH OTHER PERSON OVER WHOM HE HAS NO JURISDICTION, THEN, IN THAT EVENT, HE HAS TO TRANSMIT THE MATERIAL TO THE ASSESSING OFFICER HA VING JURISDICTION OVER SUCH OTHER PERSON AND IN SUCH CASES THE ASSESSING OFFICER WHO HAS JURISDICTION WILL PROCEED AGAINST SUCH OTHER PERSON BY ISSUING THE REQUISITE NOTICE CONTEMPLATED BY S. 158BC OF THE ACT. ' 13. SIMILAR VIEW HAS BEEN TAKEN BY THE GUJAR AT HIGH COURT IN RUSHIL INDUSTRIES LTD. V. HARSHO/TAXAP/1254/2014 ORDER PRAKASH [(2001) 251 ITR 608], PRIYA BLUE INDUSTRIES P. LTD. V. JOINT COMMISSIONER OF INCOME - TAX [(2001) 251 ITR 615], PREMJIBHAI AND SONS V. JOINT COMMISSIONER OF INCOME - TAX [(2001) 25 1 ITR 625], AND BY KERALA HIGH COURT IN COMMISSIONER OF INCOME - TAX V. DEEP ARTS [(2005) 274 ITR 571], COMMISSIONER OF INCOME - TAX V. DON BOSCO CARD CENTRE [(2006) 205 CTR 500] AND BY MADHYA PRADESH HIGH COURT IN COMMISSIONER OF INCOME - TAX V. SMT. MAYA CHOT RANI[(2007) 288 ITR 175].' 12. THE AFORESAID OBSERVATIONS GO TO SHOW THAT IF THE CONDITION PRECEDENT FOR BLOCK ASSESSMENT UNDER SECTION 158BC IS NOT SATISFIED, SUCH WOULD GO TO THE ROOT OF THE MATTER AND THE JURISDICTION, WHICH HAS NOT BEEN EXPRESSLY CONFE RRED BY THE STATUTE, CANNOT BE INVESTED WITH THE AO FOR THE BLOCK ASSESSMENT. 13. ON FACTS, AS RECORDED HEREIN ABOVE, ADMITTEDLY, THERE WAS NO WARRANT AUTHORIZATION ON THE NAME OF THE ASSESSEE AND HENCE, THE TRIBUNAL HAS FOUND THE ASSESSMENT AS AB INITIO V OID, WHICH, IN OUR VIEW, CALLS FOR NO INTERFERENCE, ON FACTS AND ON LAW. 18. IN THE CASE OF SHIKSHA O ANUSANDHAN V. CIT (SUPRA) THE HON'BLE ORISSA HIGH COURT HELD AS UNDER: - SECTION 132 PRESCRIBES THAT THE COMPETENT AUTHORITIES ARE EMPOWERED TO PERMIT THE AUTHORIZED OFFICERS TO ENTER, SEARCH, BREAK OPEN, SEIZE, PLACE MARKS OF IDENTIFICATION AND TAKE OTHER STEPS AS CONTEMPLATED UNDER SUBCLAUSES (I) TO (V). HOWEVER, SUCH POWERS CAN BE EXERCISED AGAINST A PERSON UPON FULFILLMENT OF CERTAIN CONDITIONS. FIRSTLY, THE COMPETENT AUTHORITY MUST HAVE THE INFORMATION IN ITS 17 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. POSSESSION AND, SECONDLY, ON THE BASIS OF SUCH INFORMATION IT MUST HAVE THE REASON TO BELIEVE THAT THE CONDITIONS A S STIPULATED IN SUB - CLAUSES (A),(B) AND (C) OF SECTION 132(1) OF THE I.T. ACT, 1961 EXIST. SUB - CLAUSES (A), (B) AND (C) OF SECTION 132(1) SPEAK OF ANY PERSON. SEARCH AND SEIZURE CANNOT BE SUSTAINED UNLESS IT IS CLEARLY SHOWN THAT IT WAS DONE BY THE AUTHORI TY DULY AUTHORIZED, AND ALL THE CONDITIONS PRECEDENT IN RELATION THERETO EXISTED. THUS, BEFORE ISSUANCE OF SEARCH WARRANT IN ORDER TO TAKE RECOURSE UNDER SECTION 132 OF THE I.T. ACT, 1961, THE AUTHORITY COMPETENT TO ISSUE SEARCH WARRANT MUST BE SATISFIED T HAT SEARCH UNDER SECTION 132 (1) IS NEEDED IN RESPECT OF A DEFINITE PERSON. SATISFACTION REQUIRED UNDER SECTION 132 (1) OF THE ACT 1961 IS QUA THE PERSON WHOSE NAME APPEARS IN THE WARRANT OF AUTHORIZATION. IF SEARCH AS CONTEMPLATED UNDER SECTION 132 OF THE I.T. ACT, 1961 IS CONDUCTED IN THE PREMISES OF A PERSON WITHOUT ANY WARRANT OF AUTHORIZATION IN THE NAME OF THE PERSON SEARCHED, OR ON THE BASIS OF A WARRANT OF AUTHORIZATION IN THE NAME OF SOME OTHER PERSONS, THAT WOULD BE A CLEAR CASE OF NON - APPLICATION OF MIND OF THE EMPOWERED I.T. AUTHORITIES AND SUCH A SEARCH CANNOT BE HELD TO BE VALID. IT IS SO, BECAUSE THE BELIEF WHICH FORMS THE FOUNDATION OF SEARCH RELATES TO A DEFINITE PERSON WHO IS TO BE SUBJECTED TO SEARCH. IF THE CONTRARY IS THE FACT SITUATION, THE SAME WOULD AMOUNT TO SERIOUS LAPSES AND WOULD BE IN CLEAR VIOLATION OF THE PROVISIONS CONTAINED IN SECTION 132(1) OF THE I.T. ACT, 1961, AS IT DOES NOT STAND TO THE TEST OF SECTION 132 OF THE I.T. ACT, 1961. THEREFORE, THE MOST SERIOUS CONTENT OF THE WARRANT OF AUTHORIZATION IS THE NAME AND DESCRIPTION OF THE PERSON WHOSE PREMISES, ETC., ARE SOUGHT TO BE SEARCHED. THE PUNJAB & HARYANA HIGH COURT IN JAGMOHAN MAHAJAN & ORS. VS. CIT, PUNJAB & ORS., (1976) 103 ITR 579, HELD THAT A SEARCH AUTHORIZED IN THE ABSENCE OF MATERIAL NECESSARY TO FORM THE REQUISITE BELIEF UNDER SECTION 132(1) ON THE BASIS OF BLANK WARRANT OF AUTHORIZATION SIGNED BY THE CIT WAS ILLEGAL AND NO ORDER UNDER SECTION 132(5) ON THE BASIS OF SUCH A SEARCH COULD BE MADE. THE DELHI HIGH COU RT IN AJIT JAINS CASE (SUPRA) HELD THAT IT IS AXIOMATIC THAT SEARCH UNDER SECTION 132 HAS TO BE A VALID SEARCH. AN ILLEGAL SEARCH IS NO SEARCH AND AS A NECESSARY COROLLARY IN SUCH A CASE CHAPTER - XIV - B WOULD HAVE NO APPLICATION. THIS JUDGMENT OF THE DELHI HIGH COURT HAS BEEN UPHELD BY THE APEX COURT IN UNION OF INDIA VS. AJIT JAIN & ANR., (2003) 260 ITR 80. THE DELHI HIGH COURT IN COMMISSIONER OF INCOME TAX VS. M/S. ROHINI S. WALIA, (2007) 289 ITR 328, HELD THAT IT WOULD BE A FUTILE EXERCISE TO ENTERTAIN TH E APPEALS WHERE ADMITTEDLY NO SEARCH WARRANT WAS ISSUED IN CASE OF THE ASSESSEES AND THE TRIBUNAL HELD THAT UNLESS A SEARCH WARRANT WAS ISSUED, THE ASSESSING OFFICER COULD NOT INVOKE THE PROVISIONS OF SECTION 158 BC OF THE I.T. ACT, 1961 FOR INITIATION OF BLOCK ASSESSMENT PROCEEDINGS AGAINST THE ASSESSEES. THUS, WE ARE OF THE VIEW THAT IN ABSENCE OF ANY SEARCH WARRANT IN THE NAME OF AN ASSESSEE, SEARCH CONDUCTED IN ITS PREMISES IS NOT A VALID SEARCH AS CONTEMPLATED UNDER SECTION 132 OF THE I.T. ACT, 1961. 19. IN THE CASE OF SMT RAJKUMARI CHANDAK V . ACIT (SUPRA) THE HON'BLE MADRAS HIGH COURT HELD AS UNDER: - 18 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. 16. IN ORDER TO VERIFY THE CORRECTNESS AS TO WHETHER THERE WAS A SEARCH CONDUCTED IN THE PREMISES OF THE ASSESSEE CONSEQUENT UPON THE SEARCH NOTICE UNDER SECTION 132 OF THE ACT, THIS COURT CALLED FOR THE RECORDS OF THIS COURT IN THE EARLIER ROUND OF LITIGATION IN TCA NOS.240 AND 241/2000. IN THE SAID DOCUMENTS, THE OBJECTION RAISED BY THE LEARNED COUNSEL FOR THE APPELLANT THAT THERE WAS NO SEARCH CONDUCTED BY THE RESPONDENT IN THE PREMISES OF THE ASSESSEE, BE IT BUSINESS PREMISES OR RESIDENCE PREMISES, IS FOUND TO BE JUSTIFIED FROM A READING OF THE RECORD OF PROCEEDINGS DATED 31.8.95 IN RELATION TO NAV BHARAT CORPORATION AT NO.28, GODOWN STREET. IT WAS A CAS E OF SURVEY UNDER SECTION 133 A OF THE ACT AND ON THAT BASIS ALONE THE ENTIRE PROCEEDINGS HAS HAPPENED. FOR BETTER CLARITY, THE RELEVANT PORTION OF THE PROCEEDINGS, WHICH SHOWS THAT ONLY SURVEY WAS CONDUCTED IN THE PREMISES OF NAV BHARAT CORPORATION, IS EX TRACTED HEREINBELOW : 'INVENTORY OF STOCKS TAKEN AT THE BUSINESS PREMISES OF M/S. NAV BHARAT CORPORATION, 28, GODOWN ST., MADRAS - 1, DURING THE COURSE OF SEARCH / SURVEY U/S 133A ON 31/08/95.' 17. THE ABOVE DOCUMENT, WHICH IS UNDISPUTED AND FORMS PART OF THE COURT RECORDS, MAKES IT CLEAR THAT THE CONFUSION HAS APPARENTLY HAPPENED BECAUSE SEARCH UNDER SECTION 132 OF THE ACT COMMENCED IN THE CASE OF OTHER ASSESSEES AS WELL AND, THEREFORE, ALL SIMILARLY PLACED PERSONS WERE CLUBBED TOGETHER AND ASSESSMENT ORD ERS WERE PASSED. HOWEVER, NEITHER IN THE COURSE OF PASSING THE ASSESSMENT ORDER NOR DURING THE APPEAL PROCEEDINGS BEFORE THE TRIBUNAL OR THIS COURT, ATTENTION WAS DRAWN TO THE SURVEY PROCEEDINGS UNDER SECTION 133 A OF THE ACT, INSOFAR AS THE PRESENT ASSESS EE IS CONCERNED. SINCE ALL THE CASES WERE TAKEN UP TOGETHER AS ONE LOT AND ASSESSMENT ORDERS WERE PASSED, THE ERROR COULD HAVE HAPPENED. SINCE THE EARLIER ORDER OF THE TRIBUNAL DATED 12.4.99 DOES NOT DEAL WITH EACH ONE OF THE ASSESSEE, BUT BASED ON A COMMO N ORDER PASSED BY THE TRIBUNAL, THE ERROR IN THE PRESENT CASE IS APPARENT ON THE FACE OF THE RECORD. THIS ERROR WAS ALSO NOT BROUGHT TO THE NOTICE OF THIS COURT IN THE EARLIER ROUND OF LITIGATION. THE TYPED SET OF DOCUMENTS FILED IN THE EARLIER ROUND OF LI TIGATION BY THE ASSESSEE IN TCA NOS.240 AND 241/2000 SHOWS THAT IT IS A CASE OF ONLY SURVEY U/S 133 A AND SEARCH HAS BEEN CLEARLY DELETED. THERE IS NO DISPUTE ON THIS FACT, AS THE SAME IS BORNE OUT BY DOCUMENT. IF IT IS A CASE OF SURVEY UNDER SECTION 133 A OF THE ACT, AS IS EVIDENT FROM THE DOCUMENT, THE BLOCK ASSESSMENT, INVOKING THE PROVISIONS OF SECTIONS 158BC DOES NOT ARISE, AS THERE IS NO SEARCH IN TERMS OF SECTION 132 OF THE ACT. IN VIEW OF THE ABOVE, THE 2ND SUBSTANTIAL QUESTION OF LAW, ON THE QUESTI ON OF JURISDICTION, IS ANSWERED IN FAVOUR OF THE APPELLANT/ASSESSEE AND AGAINST THE RESPONDENT/REVENUE. 20. IN THE CASE OF CIT V . ANIL KUMAR CHADHA (SUPRA) THE HON'BLE ALLAHABAD HIGH COURT HELD AS UNDER: - 17. IN THE INSTANT CASE RS. 17,00,000/ - WERE REQUIS ITIONED FROM THE S.H.O. KOTWALI, ALLAHABAD UNDER SECTION 132A OF THE ACT, WHICH WAS SEIZED FROM THREE PERSONS. THEREFORE, THE PROVISION OF SECTION 158BD IS APPLICABLE IN THE INSTANT CASE, BUT THE SAME WAS NOT APPLIED BY THE DEPARTMENT. THE ASSESSMENT WAS FRAMED AFTER ISSUING NOTICE UNDER SECTION 158BC WHICH IS NOT APPLICABLE IN THE INSTANT CASE, SINCE THE ASSESSEE WAS NEITHER SEARCHED NOR ASSETS WERE 19 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. REQUISITIONED FROM HIM UNDER SECTION 132A OF THE ACT. FURTHER, THERE WERE NO WARRANT OF AUTHORIZATION IN TH E NAME OF THE ASSESSEE. 18. IN VIEW OF THE ABOVE DISCUSSION AND BY CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, IT APPEARS THAT NO SUBSTANTIAL QUESTION OF LAW IS EMERGING FROM THE IMPUGNED ORDER. WHEN IT IS SO, THEN WE FIND NO REASO N TO INTERFERE WITH THE IMPUGNED ORDER PASSED BY THE TRIBUNAL, THE SAME IS HEREBY SUSTAINED ALONGWITH THE REASONS MENTIONED THEREIN. 19. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. 21. THE COORDINATE BENCH OF THE MUMBAI TRIBUNAL IN THE CAS E OF JCIT V. LATIKA V. WAMAN (SUPRA) HELD THAT ALL THE PERSONS WHO ARE FOUND AT PLACE OF SEARCH ARE NOT AUTOMATICALLY COVERED BY ACTION U/S. 132 OF THE ACT. THE NOTICE U/S. 158BC CANNOT BE ISSUED ON A PERSON WHO IS NOT BELONGED T O SEARCH. 22. IN THE CASE OF SMT NASREEN YUSUF DHANANI V. ACIT (SUPRA) THE COORDINATE BENCH OF THIS TRIBUNAL HELD AS UNDER: - CHAPTER XIV - B IS A SPECIAL PROCEDURE FOR MAKING ASSESSMENT OF SEARCH CASES. THESE PROVISIONS OF BLOCK ASSESSMENT COME INTO PICTURE ONLY AS A RESULT OF SEARCH ACTION CARRIED OUT UNDER S. 132. ON READING THE PROVISIONS OF S. 132(1), IT IS CLEAR THAT THE SECTION IS PERSON SPECIFIC AND NOT PREMISES SPECIFIC AS ARGUED BY THE DEPARTMENTAL REPRESENTATIVE. THE PRIMARY TARGET FOR CONDUCTING A SEARCH ACTION IS THE PERSON WHO IS IN POSSESSION OF ANY UNDISCLOSED INCOME AND UPON CONSEQUENCE OF THE SAME THE SEARCH PARTY CAN ENTER AND SEARCH ANY BUILDING, PLACE, VESSEL, VEHICLE OR AIRCRAFT WHERE THE UNDISCLOSED ASSETS OR INCRIMINATING DOCUMENTS ARE LIKELY TO BE FOUND IN RELATI ON TO SUCH PERSON. 23. IN THE CASE OF M/S. BALAJI YARN LTD V . DCIT (SUPRA) THE COORDINATE BENCH OF THIS TRIBUNAL CONSIDERED A SIMILAR ISSUE , AS TO WHETHER IN THE ABSENCE OF WARRANT OF AUTHORIZATION IN THE NAME OF THE ASSESSEE THE SEARCH IS VALI D OR NOT AND IT HAS BEEN HELD AS UNDER: - 2. DURING THE COURSE OF THE PROCEEDINGS, THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND IN BOTH THE APPEALS WHIC H READS AS FOLLOWS: 20 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. ON THE FACTS AND CIRCUMSTANCES OF CASE AND IN LAW, THE ADDITIONS MADE ARE BEYOND TH E SCOPE OF PROVISIONS OF SECTION 153A AND HENCE INVALID AND THE SAME OUGHT TO BE DELETED. SINCE THIS GROUND OF APPEAL DEALS WITH THE JURISDICTION TO INITIATE PROCEEDINGS U/S 153A OF THE ACT, IN OUR VIEW, THE SAME INVOLVES A QUESTION OF LAW WHICH EMERGES F ROM THE FACTS ON RECORD IN THE ASSESSMENT PROCEEDINGS, WE ADMIT THE THE SAID ADDITIONAL GROUND RAISED BY TH E ASSESSEE IN BOTH THE APPEALS. 3. THE ASSESSMENT ORDERS BOTH DATED 16.12.2008 FOR THE YEARS UNDER CONSIDERATION REVEAL THAT THE IMPUGNED ADDITIONS A RE MADE BY THE AO U/S 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961. THE ORDERS OF THE LOWER AUTHORITIES INDICATE THAT A SEARCH ACTION U/S 132 OF THE ACT HAS BEEN CONDUCTED ON 10.11.2006 AT VARIOUS BUSINESS/RESIDENTIAL PREMISES OF THE COMPANIES/DIRECTORS/ RELATED PERSONS BELONGING TO THE BALAJI GROUP OF CASES. BY RAISING THE AFOREMENTIONED ADDITIONAL GROUND, THE LD. AR OF THE ASSESSEE HAS ARGUED THAT THERE IS NO WARRANT IN THE CASE OF THE ASSESSEE AS NO SUCH NAME HAS BEEN FOUND IN THE PANCHNAMA. IN PURSUANC E OF THE CONTENTION OF THE ASSESSEE, THIS BENCH VIDE ORDER DATED 18.12.2012 HAS DIRECTED THE DR TO PRODUCE THE COPIES OF WARRANT IN THE CASE OF THE ASSESSEE. IN RESPONSE TO THE SAID DIRECTION, THE LD. DR HAS PRODUCED THE COMMUNICATION OF THE CONCERNED DCIT DATED 02.01.2013 WHICH CONFIRMS THAT ONLY SURVEY U/S 133A OF THE ACT HAS BEEN CARRIED OUT IN THE CASE OF THE ASSESSEE AND AS PER RECORDS NO WARRANT OF AUTHORIZATION HAS BEEN ISSUED IN THE NAME OF THE ASSESSEE. THE LD.DR HAS FURTHER CONFIRMED THAT THERE IS NO SEARCH ACTION U/S 132 OF THE ACT HAS BEEN CONDUCTED ON THE ASSESSEE. 3.1 SECTION 153A MAKES IT CLEAR THAT ONLY IN CASE OF A PERSON WHERE A SEARCH IS INITIATED U/S 132 OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED U/S 132A, T HE AO SHALL AFTER ISSUING NOTICE ASSESS OR REASSESS THE TOTAL INCOME OF SUCH PERSON FOR SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION MADE. THE LEGISLATIVE INTE NT IS CLEAR FROM THE USE OF THE EXPRESSION SUCH PERSON IN CLAUSE - (A) OF SECTION 153A. THE EXPRESSION CLEARLY RELATES TO A PERSON IN RESPECT OF WHOM SEARCH U/S 132 HAS BEEN INITIATED AS SECTION 153A ITSELF PROVIDES. THUS TO EXERCISE POWERS UNDER SECTION 1 53A IN CASE OF A PERSON, THE MANDATORY REQUIREMENT IS THAT THERE MUST BE INITIATION OF A SEARCH AS CONTEMPLATED U/S 132 OR REQUISITION U/S 132A IN RESPECT OF SUCH PERSON. IN A CASE, WHERE THERE IS NO INITIATION OF SEARCH AS CONTEMPLATED U/S 132, BASIC COND ITION FOR ISSUANCE OF NOTICE U/S 153A DOES NOT EXIST. THE WORD PERSON APPEARING IN SECTION 132 AND IN SECTION 153 A IS ONE AND THE SAME PERSON. THUS THE PERSON, IN RESPECT OF WHOM SEARCH U/S 132 IS INITIATED, IS THE SAME PERSON AGAINST WHOM NOTICE UNDER SECTION 153A IS TO BE ISSUED FOR MAKING ASSESSMENT/REASSESSMENT UNDER THAT SECTION. THUS, INITIATION OF A VALID SEARCH AS CONTEMPLATED U/S 132 IN CASE OF A PERSON IS A PREREQUISITE TO ISSUE NOTICE FOR MAKING ASSESSMENT/REASSESSMENT UNDER SECTION 153A OF TH E I.T. ACT, 1961 IN RESPECT OF SUCH PERSON. IN VIEW OF THIS SETTLED POSITION OF LAW, IN THE ABSENCE OF WARRANT OF AUTHORIZATION ISSUED IN THE NAME OF THE ASSESSEE AND CONSIDERING THE ADMITTED FACT BY THE REVENUE THAT THERE HAS BEEN NO SEARCH AS CONTEMPLATE D U/S 132 OR REQUISITION U/S 132A IN RESPECT OF THE ASSESSEE, WE ARE OF THE OPINION THAT THE ENTIRE ASSESSMENT PROCEEDINGS BY THE LOWER AUTHORITY IS BAD IN LAW AND THE SAME NEEDS TO BE QUASHED. ACCORDINGLY, WE ALLOW THE ADDITIONAL GROUNDS RAISED IN BOTH TH E APPEALS. CONSEQUENTLY, OTHER GROUNDS RAISED BY THE ASSESSEE IN BOTH THE APPEALS BECOME INFRUCTUOUS. 24. IN THE CASE OF CIT V. SMT PRIYANKA SINGHANIA (SUPRA) THE HON'BLE DELHI HIGH COURT HELD AS UNDER: - 21 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. 4. THE QUESTION THAT HAS ARISEN IS WHETHER ANY PROCEEDINGS AT ALL COULD HAVE BEEN INITIATED AGAINST THE RESPONDENT ADMINISTRATIVE EXPENSES UNDER SECTION 153A OF THE ACT, WITHOUT THERE BEING A SEARCH WARRANT IN HER NAME ISSUED IN TERMS OF SECTION 132 READ WITH RULE 112 OF THE INCOME - TAX RULES 1962 AND FORM 45 THEREOF? THIS QUESTION IS SIGNIFICANT SINCE IT GOES TO THE ROOT OF THE MATTER. IF THERE WAS NO SEARCH WARRANT IN THE NAME OF THE RESPONDENT, THEN THE QUESTION OF THERE BEING ANY PROCEEDINGS AT ALL AGAINS T HER UNDER SECTION 153A OF THE ACT WOULD NOT ARISE. 25. IN VIEW OF ABOVE DISCUSSION AND VARIOUS JUDICIAL PRONOUNCEMENTS , IT IS CLEAR THAT WHEN THERE IS NO SEARCH WARRANT ISSUED THERE CANNOT BE AN ASSESSMENT U/S. 158BC /153A OF THE ACT. ON A READING OF THE AS SESSMENT ORDER PASSED U/S. 143(3) R.W.S. 153A OF THE ACT IN ASSESSEES CASE , WE FIND THAT THERE ARE CONTRADICTORY FINDINGS REGARDING THE ACTION TAKEN BY THE REVENUE I.E. SURVEY AND SEARCH , AND FURTHER IN THE ABSENCE OF ANY DOCUMENTARY PROOF SUBMITTED BY THE REVENUE TO PROVE THAT THE SEARCH WARRANT WAS ISSUED IN THE NAME OF THE ASSESSEE THE ASSESSMENT MADE U/S. 143(3) R.W.S. 153A IS BAD IN LAW AND VOID AB - INITIO . THUS, WE QUASH THE ASSESSMENTS MADE U/S. 143(3) R.W.S. 153A OF THE ACT FOR THE ASSESSMENT YEARS 2002 - 03 TO 2007 - 08 . THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED. 26. SINCE THE LEGAL GROUND IS DECIDED IN FAVOUR OF THE ASSESSEE, WE ARE NOT INCLINED TO GO INTO THE OTHER GROUNDS RAISED BY THE ASSESSEE ON THE ADDITIONS/DISALLOWANCES MADE WH ILE COMPLETING THE ASSESSMENTS. 27. NOW COMING TO THE APPEAL S FILED BY THE ASSESSEE IN ITA.NO. 4738 TO 4743/MUM/2013, WE OBSERVE THAT THESE APPEALS WERE FILED BY THE 22 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 38, MUMBAI [HER EINAFTER IN SHORT LD.CIT(A)] DATED 28.03.2013 IN SUSTAINING THE ADDITIONS/DISALLOWANCES BY THE ASSESSING OFFICER WHILE PASSING THE CONSEQUENTIAL ORDER GIVING EFFECT TO THE ORDER OF THE LD.CIT(A) DATED 30.09.2010 . SINCE, WE HAVE QUASHED THE ASSESSMENTS M ADE U/S. 143(3) R.W.S. 153A OF THE ACT THE ORDER P ASSED BY THE ASSESSING OFFICER GIVING EFFECT TO THE LD.CIT(A) ORDER DATED 30.09.2010 AND THE ORDER PASSED BY THE LD.CIT(A) DATED 28.03.2013 CONFIRMING THE ORDER OF THE ASSESSING OFFICER WILL NOT SURVIVE. CONSEQUENTLY, THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD.CIT(A) DATED 28.03.2013 BECOMES INFRUCTUOUS. HENCE, THESE APPEALS ARE DISMISSED AS INFRUCTUOUS . 28. IN THE RESULT, APPEALS FILED BY THE ASSESSEE IN ITA.NO. 233 TO 239/MUM/2011 ARE PAR TLY ALLOWED AS INDICATED ABOVE AND APPEALS OF THE ASSESSEE IN ITA.NO. 4738 TO 4743/MUM/2013 ARE DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON THE 30 TH NOVEMBER , 2018 SD/ - SD/ - ( R AJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED : 30 / 11 /2018 GIRIDHAR , SR. PS 23 ITA NO.233, 234, 235, 236, 237 & 239/MUM/2011 ITA NO.4738, 4739, 4740, 4741,4742 & 4743 /MUM/2013 M/S. TOPLINE WRITING INSTRUMENTS (P.) LTD. COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM