A.C.I.T., Circle-3(1), Gwalior V. Smt. Reena Shivhare, Gwalior

ITA 263/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0518 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 11 month(s) 1 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-03-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 14-06-2012

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NOS.193/AGR./2012 TO 198/AGR./2012 ASSTT. YEARS: 2003-04 TO 2008-09 A.C.I.T., CIRCLE 3(1), VS. SHRI PRADEEP SHIVHA RE, CIRCLE-3(1), GWALIOR, B-32, R.P. COLONY, GWALIOR (M.P.) (PAN : AGMPG 8217 M). ITA NOS.199/AGR./2012 TO 204/AGR./2012) ASSTT. YEARS: 2003-04 TO 2008-09 A.C.I.T., CIRCLE 3(1), VS. SMT. POONAM SHIVHARE, 3(1), GWALIOR. B-32, R.P. COLONY, GWALIOR (M.P.) (PAN : AGHPS 8733 R). APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI RAJENDRA SHARMA, ADVOCATE ITA NOS.257/AGR./2012 TO 262/AGR./2012) ASSTT. YEARS: 2003-04 TO 2008-09 A.C.I.T., CIRCLE 3(1), VS. SMT. DIVYA SHIVHARE, 3(1), GWALIOR. M-40, GANDHI NAGAR, GWALIOR (M.P.) (PAN : AFGPG 4162 C). ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 2 ITA NOS. 263/AGR./2012 TO 268/AGR./2012) ASSTT. YEARS: 2003-04 TO 2008-09 A.C.I.T., CIRCLE 3(1), VS. SMT. REENA SHIVHARE, 3(1), GWALIOR. M-40, GANDHI NAGAR, GWALIOR (M.P.) (PAN : ARRPS 3558 H). (APPELLANTS) (RESPONDENTS) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI V. BAPANA, C.A. DATE OF HEARING : 12.03.2013 DATE OF PRONOUNCEMENT OF ORDER : 22.03.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS ORDER SHALL DISPOSE OF ALL THE DEPARTMENTAL A PPEALS FILED BY THE REVENUE AGAINST DIFFERENT COMMON ORDERS OF LD. CIT(A), GWAL IOR DATED 27.02.2012 AND 23.03.2012 IN THE ABOVE ASSESSMENT YEARS. IT IS SUB MITTED BY BOTH THE PARTIES THAT THE ISSUE IS COMMON IN ALL THE DEPARTMENTAL APPEALS AND THE PARTIES MAINLY ARGUED IN THE CASES OF ASSESSEE, PRADEEP SHIVHARE. THEREFO RE, FOR THE PURPOSE OF DISPOSAL OF ALL THE APPEALS, WE TAKE UP THE DEPARTMENTAL APP EALS IN THE CASES OF ASSESSEE, PRADEEP SHIVHARE AS UNDER : ITA NOS. 193/AGR./2012 TO 198/AGR./2012 (SH. PRADE EP SHIVHARE) : 2. THE DEPARTMENTAL APPEALS ARE FILED ON THE FOLLOW ING GROUND COMMON IN ALL THE APPEALS : ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 3 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THE ASSESSMENT ORDER AS INVALID PARTICULARLY IN VIEW OF THE FACT THAT IN THE SEARCH WARRANT THE NAME OF PROPRIETARY CONCERN OF THE ASSESSEE WAS MENTIONED. 3. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH OP ERATION U/S 132 OF THE I.T. ACT, 1961 HAS BEEN CONDUCTED ON 12.05.2008 AT THE RESIDE NTIAL PREMISES OF SH. CHIRONJILAL SHIVHARE, PROP. M/S. C.P. INDUSTRIES, G WALIOR ALONGWITH HIS FAMILY MEMBERS. THE ASSESSEE IS THE SON OF SH. CHIRONJILAL SHIVHARE HAS BUSINESS INTERESTS IN MANUFACTURING AND TRADING OF EDIBLE OIL BESIDES LIQUOR & PROPERTY BUSINESS. AS PER THE A.O. THE MAIN CONCERNS OWNED AND CONTROLLED BY THIS GROUP ARE AS UNDER:- (I) M/S. C.P. INDUSTRIES, 15A, PINTO PARK, MAHARAJP URA, GWALIOR PROP. SHRI CHIRONJILAL SHIVHARE. (II) M/S. ASHA OIL INDUSTRIES, INDUSTRIAL AREA, MAL ANPUR PROP. SHRI PRADEEP SHIVHARE. (III) M/S. NAVEEN WINE SHOP, STATION ROAD, GWALIOR PROP. SHRI NAVEEN SHIVHARE. (IV) M/S. NAVEEN OIL INDUSTRIES, TANSEN ROAD, GWALI OR PROP. SHRI NAVEEN SHIVHARE. AS PER PARA 2.0 OF THE ASSESSMENT ORDER, DURING TH E COURSE OF SEARCH, CASH & CERTAIN INCRIMINATING DOCUMENTS WERE FOUND WHICH WE RE INVENTORISED. CONSEQUENTLY, NOTICE U/S 153A HAS BEEN ISSUED TO TH E ASSESSEE FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. IN RESPONSE, THE ASSESSEE HAS FILED RETURNS ON ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 4 25.10.2010 WHICH ARE SAME AS ORIGINAL RETURNS FILED IN DUE COURSE BEFORE SEARCH. FURTHER, AS PER PARA 5 OF THE ASSESSMENT ORDER, A.O . HAS ISSUED DETAILED QUESTIONNAIRE TO THE ASSESSEE AND VARIOUS OPPORTUNI TIES HAS BEEN GIVEN TO SUBMIT EXPLANATION. ACCORDINGLY, ASSESSMENTS HAVE BEEN COM PLETED U/S 153 A R/W 143(3) ON THE ASSESSED INCOME BY MAKING ADDITIONS FOR UNEX PLAINED BANK DEPOSITS, CREDITORS, UNSECURED LOANS, UNEXPLAINED TRANSACTION S WITH OTHER PARTIES ETC. AS MENTIONED IN THE ASSESSMENT ORDERS. 3.1 THE ASSESSEE OBJECTED TO THE INITIATION OF PROC EEDINGS U/S. 153A WHEN NO SEARCH WARRANT HAS BEEN ISSUED IN THE INDIVIDUAL NA ME OF THE ASSESSEE, I.E., PRADEEP SHIVHARE / GUPTA. AS PER ASSESSEE NEITHER ANY SEARC H OPERATION HAS BEEN CONDUCTED U/S. 132 NOR IS THERE ANY REQUISITION U/S. 132A OF THE IT ACT SINCE THE SEARCH OPERATIONS HAVE BEEN CARRIED OUT AT THE RESIDENTIAL PREMISES OF SHRI CHIRONJI LAL SHIVHARE, PROPRIETOR, M/S. C.P. INDUSTRIES, GWALIOR AND OTHERS. COPY OF JOINT PANCHNAMA PREPARED DURING THE COURSE OF SEARCH OPER ATION HAS ALSO BEEN SUBMITTED IN SUPPORT BY THE ASSESSEE CONTENDING THAT ASSESSME NT ORDERS PASSED U/S. 153A IN HIS NAME ARE BAD IN LAW. THE LD. CIT(A) CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, SEVERAL SEARCH WARRANTS AND PANCHNAMAS AN D MATERIAL ON RECORD, HELD THAT THE CONDITIONS OF SECTION 153A ARE NOT SATISFIED IN THIS CASE, AS NO SEARCH WAS ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 5 CONDUCTED U/S. 132 OF THE IT ACT AGAINST THE ASSESS EE AND THAT CONDITIONS OF SECTION 153C ARE ALTOGETHER DIFFERENT FROM SECTION 153A. TH EREFORE, ALL THE ASSESSMENT ORDERS ARE INVALID AND ACCORDINGLY ALL THE ASSESSME NT ORDERS WERE QUASHED. THE LD. CIT(A), HOWEVER, DID NOT DECIDE THE ADDITIONS ON ME RIT IN VIEW OF HOLDING THE ASSESSMENT ORDERS TO BE INVALID. FINDINGS OF THE LD . CIT(A) IN THE IMPUGNED ORDER IN PARA 4.1 TO 6 ARE REPRODUCED AS UNDER : 4.1 APPELLANTS SUBMISSIONS HAVE BEEN CONSIDERED C AREFULLY ALONGWITH ASSESSMENT RECORDS, APPRAISAL REPORT, COP Y OF PANCHNAMA. THE MATTER HAS ALSO BEEN DISCUSSED WITH ADIT(INV.), GWALIOR & A.O. DURING THE COURSE OF APPEAL PROCEEDINGS, A.O. HAS S UBMITTED THAT THE COPY OF SEARCH WARRANT HAS NEITHER BEEN HANDED OVER TO HIM NOR IS IN HIS POSSESSION. FINALLY, COPY OF SEARCH WARRANT, IS SUED IN FORM NO. 45, AS OBTAINED FROM O/O. JT. DIRECTOR OF INCOME TA X (INV.), BHOPAL, AFTER PROLONGED DELIBERATIONS, HAS BEEN SEEN & PLAC ED ON RECORD. THE SAME HAS ALSO BEEN SHOWN TO THE A.O. ALONGWITH APPE LLANTS SUBMISSIONS. FROM ITS PERUSAL, IT IS SEEN THAT WARR ANT OF AUTHORIZATION U/S. 132 OF THE I.T. ACT R/W RULE 112(1) OF THE I.T . RULES, 1962 HAS BEEN ISSUED FOR PREMISES VIZ. HOUSE NO. B-32, R.P. COLON Y, TANSEN ROAD, GWALIOR IN THE FOLLOWING NAMES:- (I) SH. CHIRONJI LAL SHIVHARE, (II) ASH DEVI, (III) PRAVEEN KUMAR, (IV) PRAMOD KUMAR (V) NAVEEN KUMAR (VI) SHEETAL DEV I (VII) MANOJ (VIII) RAJENDRA (IX) VEENA DEVI (X) SANJAY (XI) HAR IBABU (XII) LAXMI DEVI (XIII) MEENU (XIV) SANGEETA (XV) C.P. INDUSTRI ES (XVI) ASHA OIL INDUSTRIES (XVII) SHIVHARE & SONS (XVIII) HAZARILAL SANDEEP KUMAR & (XIX) MAHALAXMI TRADING CO. SIMILAR IS THE CASE WIT H JOINT PANCHNAMA DTD. 12.05.2008 PREPARED IN ABOVE MENTION ED NAMES BY THE AUTHORIZED OFFICER. THUS, THE NAME OF THE APPEL LANT IS NOT FOUND MENTIONED ANYWHERE I.E. NEITHER IN THE WARRANT OF A UTHORIZATION NOR IN THE PANCHNAMA PREPARED ON THE DATE OF SEARCH. THOUG H THE NAME OF ASHA OIL INDUSTRIES IS FOUND MENTIONED IN THE WARRA NT OF AUTHORIZATION ISSUED U/S 132 OF WHICH THE APPELLANT IS THE PROPRI ETOR. HOWEVER, THE SAID ASHA OIL INDUSTRIES IS SITUATED AT 63, MALANPU R INDUSTRIAL AREA, ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 6 MALANPUR, DISTT. BHIND. AS PER THE ORIGINAL RETURNS FILED BY THE APPELLANT ENCLOSING AUDIT REPORT IN FORM 3CB, THE S AME ADDRESS I.E. 63, MALANPUR INDUSTRIAL AREA, MALANPUR, DISTT. BHIN D IS MENTIONED IN RESPECT OF ASHA OIL INDUSTRIES. IT IS ALSO AN UNDIS PUTED FACT THAT ASHA OIL INDUSTRIES HAS NO OTHER BRANCHES OR OFFICES EXC EPT FOR 63, MALANPUR INDUSTRIAL AREA WHEREAS SEARCH WARRANT HAS BEEN ISSUED IN RESPECT OF PREMISES LOCATED AT HOUSE NO. B-32, R.P. COLONY, TANSEN ROAD, GWALIOR. AS PER RECORDS, A SURVEY OPERATIONS U/S 133A HAS ALSO BEEN CONDUCTED ON THE SAME DATED I.E. 12.05.2008 IN RESPECT OF M/S. ASHA OILD INDUSTRIES, SITUATED AT 63, MALANPUR INDU STRIAL AREA. DURING THE COURSE OF SURVEY OPERATIONS, DOCUMENTS H AVE BEEN IMPOUNDED AS PER ANNEXURE B-1-1 TO 16 AS PER INVENT ORY OF BOOKS OF ACCOUNTS, DOCUMENTS ETC. FOUND AND ORDER DTD. 12.05 .2008 PASSED U/S 133A (3) (IA) OF THE I.T. ACT. IT HAS ALSO NOT BEEN DISPUTED BY THE A.O. DURING THE COURSE OF APPEAL PROCEEDINGS THAT NO DOC UMENT WHATSOEVER, LEAVE ASIDE ANY INCRIMINATING DOCUMENTS , HAS BEEN FOUND OR SEIZED IN RESPECT OF ASHA OIL INDUSTRIES FROM TH E PREMISES SEARCHED U/S 132(1) I.E. HOUSE NO. B-32, R.P. COLONY, TANSEN ROAD, GWALIOR. ONLY NOMINAL CASH OF RS. 5400/- HAS BEEN FOUND FROM BEDROOM OF SHRI PRADEEP SHIVHARE DURING THE COURSE OF SEARCH OPERAT IONS WHICH HAS ALSO NOT BEEN SEIZED. THUS, THE APPELLANTS CONTENT IONS THAT NO SEARCH WARRANT HAS BEEN ISSUED IN HIS INDIVIDUAL NAME IS F OUND ACCEPTABLE IN THAT HIS NAME IS FOUND MENTIONED NOWHERE IN THE JOI NT WARRANT OF AUTHORIZATION ISSUED OR JOINT PANCHNAMA PREPARED BY THE AUTHORIZED OFFICER DURING THE COURSE OF SEARCH OPERATIONS. INS TEAD A SURVEY OPERATIONS ONLY U/S 133A HAS BEEN CARRIED OUT ON TH E SAME DATE IN CASH OF M/S. ASHA OIL INDUSTRIES SITUATED AT DIFFER ENT PREMISES THAT FROM THE ONE AUTHORIZED TO BE SEARCHED AS PER THE W ARRANT. SURVEY PROCEEDINGS ARE SEPARATE, DISTINCT AND INDEPENDENT PROCEEDINGS HAVING LIMITED SCOPE AND POWERS AS COMPARED TO SEAR CH PROCEEDINGS CARRIED OUT U/S 132 WHICH HAVE BEEN HELD TO BE HAVI NG DRASTIC CONSEQUENCES AND, THEREFORE, HAVE WELL GUARDED POWE RS AND NECESSARY SAFEGUARDS CONTAINED AS PER PROVISIONS OF SEC. 132. A.O. HAS ISSUED NOTICES U/S 153A FOR THE SIX YEARS UNDER CONSIDERATION IN PURSUANCE OF SEARCH WARRANT WHICH DOES NOT MENTION THE NAME OF THE APPELLANT. SECTION 153A PROVIDES THAT IN CASE A PER SON AGAINST WHOM SEARCH IS INITIATED U/S 132A OF THE ACT THEN NOTWIT HSTANDING ANYTHING CONTAINED IN SECTIONS 139, 147, 148, 149, 151 & 153 OF THE INCOME TAX ACT, THE ASSESSING OFFICER SHALL ISSUE A NOTICE TO SUCH PERSON ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 7 REQUIRING HIM TO FURNISH RETURNS OF INCOME IN RESPE CT OF SIX ASSTT. YEARS PRECEDING TO THE ASSTT. YEAR RELEVANT TO THE PREVIO US YEAR IN WHICH SEARCH WAS CONDUCTED OR REQUISITION MADE. THUS, THE PREREQUISITE OF SECTION 153A IS THAT ASSESSMENT UNDER THIS SECTION CAN BE MADE ONLY IN A CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDE R SECTION 132 OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS A RE REQUISITIONED UNDER SECTION 132A AFTER 31.05.2003. AS THE PRESENT CASE IS NOT A CASE OF REQUISITION AS DESCRIBED IN SECTION 132A, THEREF ORE, THE PREREQUISITE CONDITION FOR APPLICATION OF SECTION 153A IS THAT A SSESSMENT UNDER THIS SECTION CAN BE MADE AGAINST A PERSON IN THE CASE OF WHOM A SEARCH IS INITIATED UNDER SECTION 132 OF THE ACT. IT IS THE C ASE OF THE APPELLANT THAT NO SEARCH HAS BEEN INITIATED IN HIS CASE THERE FORE, RESORT TO SECTION 153A WAS IN VIOLATION OF LAW. TO EXAMINE SU CH CONTENTION IT HAS TO BE SEEN THAT WHETHER ANY SEARCH HAS BEEN INI TIATED IN THE CASE OF THE APPELLANT. AS MENTIONED ABOVE, APPELLANTS N AME DOES NOT APPEAR EITHER IN JOINT WARRANT OF AUTHORIZATION NOR IN THE JOINT PANCHNAMA PREPARED BY THE AUTHORIZED OFFICER. THUS, PREREQUISITE CONDITIONS OF SEARCH BEING INITIATED IN THE CASE OF THE APPELLANT IS NOT FULFILLED. IN FACT, THE SEARCH WARRANT CONTAINING THE NAME OF THE APPELLANTS PROPRIETARY CONCERN AND THE PANCHNAMA H AS NOT EVEN GOT SIGNED FROM THE APPELLANT DURING THE COURSE OF SEAR CH OPERATIONS. CARRYING OUT OF SEPARATE AND DISTINCT SURVEY OPERAT IONS U/S. 133A TO BUSINESS PREMISES OF A CONCERN BELONGING TO THE APP ELLANT DOES NOT ENTITLE THE A.O. TO INITIATE PROCEEDINGS U/S 153A. HOWEVER, HERE, IT MAY BE THE CONTENTION OF THE A.O. THAT THE PLACE WH ERE SEARCH IS CONDUCTED IS PLACE WHERE THE APPELLANT RESIDES AND WHETHER THE ASSESSMENT IS MADE UNDER SECTION 153A OR UNDER SECT ION 153C, IT IS ONLY A TECHNICAL ISSUE FOR WHICH ASSESSMENT CANNOT BE HELD INVALID. THERE IS NO FORCE IN SUCH CONTENTION EITHER SINE IF THE ASSESSMENT IS MADE UNDER SECTION 153C THEN ALSO THERE IS CERTAIN PROCEDURE PRESCRIBED UNDER THAT SECTION WHICH IS TO BE FOLLOW ED BY THE A.O. THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT ANY EXERCISE WHICH HAS BEEN MENTIONED IN THE PROVISIONS OF SECTION 153C HA S BEEN ADOPTED. THERE MAY BE A VALID SEARCH IN THE CASE OF SAID SHR I CHIRONJI LAL SHIVHARE BUT ASSESSMENT UNDER SECTION 153A COULD BE MADE ONLY IN HIS HANDS AND NOT IN THE CASE OF APPELLANT UNLESS P ROCEDURE LAID DOWN IN SECTION 153A/C IS FOLLOWED. SUCH DEFECT IN FRAMI NG THE ASSESSMENT IS A JURISDICTIONAL DEFECT WHICH CANNOT BE CURED BY RESORTING TO ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 8 PROVISIONS OF SEC. 292B, AS MENTIONED BY THE A.O. D URING DISCUSSION IN APPEAL. 5. IN VIEW OF ABOVE UNDISPUTED FACTS, IT IS HELD TH AT THE ASSESSMENTS FRAMED IN THE PRESENT CASE U/S 153A ARE INVALID AND ARE QUASHED. SIMILAR VIEW HAS BEEN HELD BY HONBLE DELHI TRIBUNA L IN CASE OF JINDAL STAINLESS LTD. VS. ASSTT. CIT (2009) 120 ITD 0301 VIDE ORDER DTD. 25.04.2008 IN ITA NOS. 3480 & 3481 (DEL) OF 20 06 FOR A.YRS. 2003-04&2004-05. RESPECTFULLY FOLLOWING THE SAME AN D FACTS BEING SIMILAR TO APPELLANTS CASE, ASSESSMENT ORDERS PASS ED U/S 153A, WITHOUT THERE BEING SEARCH WARRANT FOR ALL THE 6 YE ARS UNDER APPEAL IN THE APPELLANTS NAME, ARE HELD TO BE INVALID. THIS GROUND OF APPEAL IS, THEREFORE, ALLOWED. 5. SINCE ASSESSMENT ORDERS HAVE BEEN HELD TO BE INV ALID, MERITS OF THE ADDITIONS MADE BY THE A.O. ARE NOT ADJUDICATED HEREUPON. 6. IN THE RESULT, APPEALS FOR ALL SIX YEARS ARE ALL OWED. 4. THE LD. DR RELIED UPON THE ORDERS OF THE AO AND SUBMITTED THAT M/S. ASHA OIL INDUSTRIES BELONGS TO THE ASSESSEE AND WARRANTS HAVE BEEN ISSUED IN THE NAME OF THE FIRM. THEREFORE, THE ORDER OF THE LD. CIT(A) CA NNOT BE SUSTAINED IN LAW. HE HAS SUBMITTED THAT MERELY BECAUSE RESIDENTIAL ADDRESS I S GIVEN IN THE WARRANTS IS NO GROUND TO QUASH THE PROCEEDINGS AGAINST THE ASSESSE E. HE HAS RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. PROMAIN LTD., 22 TAXMANN.COM 268, IN WHICH THE ASSESSEE CONTENDED BE FORE THE TRIBUNAL THAT WARRANT OF AUTHORIZATION DID NOT INCLUDE AND MENTIO N NAME OF THE ASSESSEE AND, THEREFORE, BLOCK ASSESSMENT PROCEEDINGS U/S. 158BC WERE INVALID AND ILLEGAL. THE TRIBUNAL HELD THAT NAME OF THE ASSESSEE WAS NOT MEN TIONED IN THE WARRANT OF ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 9 AUTHORIZATION, THEREFORE, NO ADDITION COULD BE MADE AGAINST THE ASSESSEE. HOWEVER, IT WAS HELD THAT WHEN WARRANT OF AUTHORIZATION CLEA RLY MENTIONED THE NAME OF ASSESSEE AND THEREFORE, THE TRIBUNAL HAD RECORDED A WRONG FACTUAL FINDING THAT WARRANT OF AUTHORIZATION DID NOT INCLUDE THE NAME O F ASSESSEE, ISSUE WAS DECIDED AGAINST THE ASSESSEE. THE LD. DR ALSO RELIED UPON T HE DECISION OF HONBLE ALLAHABAD HIGH COURT (LUCKNOW BENCH) IN THE CASE OF RAGHURAJ PRATAP SINGH VS. ACIT DATED 14.07.2006, IN WHICH VALIDITY OF SEARCH U/S. 132 AND RESULTANT ACTION U/S. 158BC HAVE BEEN CHALLENGED AND FURTHER THAT AD IT CANNOT ISSUE WARRANT OF AUTHORIZATION. THE LD. DR ALSO SUBMITTED THAT IF PR OCEEDINGS U/S. 153A CANNOT BE INITIATED AGAINST THE ASSESSEE ON THE BASIS OF MATE RIAL FOUND DURING THE COURSE OF SEARCH, PROCEEDINGS SHOULD BE CONVERTED U/S. 153C O F THE IT ACT. 5. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THA T SEARCH WARRANT WAS NOT ISSUED IN THE NAME OF ASSESSEE AND NO SEARCH IS CON DUCTED IN THE CASE OF ASHA OIL INDUSTRIES. SEARCH WAS CONDUCTED IN THE CASE OF SHR I CHIRONJI LAL SHIVHARE AND PANCHNAMA WAS PREPARED IN JOINT NAME OF SEVERAL PER SONS AT HOUSE NO. B-32, R.P. COLONY, TANSEN ROAD, GWALIOR. THEREFORE, NO WARRANT OF AUTHORIZATION NOR ANY PANCHNAMA WAS PREPARED AGAINST THE ASSESSEE ON THE DATE OF SEARCH. EVEN THE PANCHNAMA WAS GIVEN TO SHRI CHIRONJI LAL SHIVHARE A ND ADDRESS OF ASHA OIL ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 10 INDUSTRIES IS DIFFERENT. THEREFORE, THE LD. CIT(A) ON PROPER APPRECIATION OF FACTS AND MATERIAL ON RECORD RIGHTLY DECLARED ASSESSMENT ORDERS TO BE INVALID U/S. 153A OF THE IT ACT. HE HAS RELIED UPON THE FOLLOWING DEC ISIONS : (I). ORDER OF ITAT, DELHI BENCH IN THE CASE OF JIN DAL STAINLESS LTD. VS. ACIT, 120 ITD 301, IN WHICH IT WAS HELD THAT THERE BEING NO SEARCH IN THE CASE OF ASSESSEE, NO ASSESSMENT COULD BE MADE UNDER S. 153A NOR UNDER S. 153C WITHOUT FOLLOWING THE PROCEDURE PRESCRIBED THEREIN. (II). DECISION OF HONBLE ALLAHABAD HIGH COURT IN T HE CASE OF CIT VS. SMT. VANDANA VERMA, 330 ITR 533 IN WHICH IT WAS HELD IT IS NOT OPEN TO THE ASSESSING AUTHORITY TO ASSESS THE ASSESSEE IN AN IN DIVIDUAL CAPACITY BY INVOKING THE PROVISIONS OF CHAPTER XIV-B ON THE BASIS OF ASSETS AND DOCUMENTS SEIZED DURING THE COURSE OF SEARCH CARRIED OUT IN PURSUANCE OF WA RRANT OF AUTHORIZATION WHICH WAS ISSUED IN THE JOINT NAMES OF THE ASSESSEE AND H ER HUSBAND; THEY CAN ONLY BE ASSESSED JOINTLY AS AN AOP OR BOI. (III). ORDER OF ITAT AHMEDABAD BENCH IN THE CASE OF DR. MANSUKH KANJIBHAI SHAH VS. ACIT, 129 ITD 376, IN WHICH IT W AS HELD WARRANT OF AUTHORIZATION BEING ISSUED IN THE NAME OF THE TRUST AND ASSESSEE BEING MANAGING ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 11 TRUSTEE OF THE TRUST, BUT NO SEARCH OPERATION WAS C ONDUCTED IN THE PREMISES OF THE ASSESSEE AND IN THE WARRANT OF AUTHORIZATION, THE A DDRESS OF THE PLACE TO BE SEARCHED IS NOT THE ADDRESS OF THE ASSESSEE INDIVID UAL, NO PANCHNAMA IS ALSO DRAWN IN PURSUANCE WITH THE WARRANT OF AUTHORIZATIO N IN THE CASE OF THE ASSESSEE, NO DOCUMENTS WERE SEIZED OR IMPOUNDED AS SUCH DURIN G THE COURSE OF SEARCH FROM THE ASSESSEE, THE AO WAS NOT JUSTIFIED IN INITIATIN G PROCEEDINGS OR ASSUMING VALID JURISDICTION UNDER S. 153A AGAINST THE ASSESSEE. HE HAS ALSO SUBMITTED THAT THE CONDITIONS OF SECTIO N 153C HAVE NOT BEEN SATISFIED IN THIS CASE. THEREFORE, THE PROCEEDINGS U/S. 153A AND ASSESSMENT ORDERS PASSED UNDER THE SAME PROVISION CANNOT BE CONVERTED INTO T HE PROCEEDINGS U/S. 153C OF THE IT ACT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. ITAT, AHMEDABAD BENCH IN THE CASE OF DR. MA NSUKH KANJIBHAI SHAH VS. ACIT, 129 ITD 376 (SUPRA) CONSIDERED THE ISSUE OF F RAMING OF ASSESSMENT U/S. 153A IN DETAIL AND HELD IN PARA 9 & 10 AS UNDER : 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND TH E MATERIAL AVAILABLE ON RECORD. SECTION 153A OF THE ACT PROVIDES ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 12 153A. 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 REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO F URNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOM E IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIB ED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SU CH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 ; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASS ESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVI OUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE : PROVIDED THAT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN S UCH SIX ASSESSMENT YEARS: PROVIDED FURTHER THAT ASSESSMENT OR REASSESSMENT, IF ANY, RELATING T O ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX AS SESSMENT YEARS REFERRED TO IN THIS SECTION PENDING ON THE DATE OF INITIATION O F THE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A , AS THE CASE MAY BE, SHALL ABATE. EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HEREB Y DECLARED THAT, (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C , ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESP ECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. SECTION 132 OF THE ACT PROVIDES - ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 13 132. (1) WHERE THE DIRECTOR GENERAL OR DIRECTOR] OR THE [CHIEF COMMISSIONER OR COMMISSIONER] [OR ANY SUCH [JOINT D IRECTOR] OR [JOINT COMMISSIONER] AS MAY BE EMPOWERED IN THIS BEHALF BY THE BOARD], IN CONSEQUENCE OF INFORMATION IN HIS POSSESSION, HAS R EASON TO BELIEVE THAT (A) ANY PERSON TO WHOM A SUMMONS UNDER SUB-SECTION (1) OF SECTION 37 OF THE INDIAN INCOME TAX ACT, 1922 (11 OF 1922), OR UNDER SUB-SECTION (1) OF SECTION 131 OF THIS ACT, OR A NOTICE UNDER SUB-SECTION (4) OF SECTION 22 OF THE INDIAN INCOME TAX ACT, 1922, OR UNDER SUBSECTION (1 ) OF SECTION 142 OF THIS ACT WAS ISSUED TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS HAS OMITTED OR FAILED TO PRODUCE , OR CAUSE TO BE PRODUCED, SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS AS REQUIRED BY SUCH SUMMONS OR NOTICE, OR (B) ANY PERSON TO WHOM A SUMMONS OR NOTICE AS AFORESAI D HAS BEEN OR MIGHT BE ISSUED WILL NOT, OR WOULD NOT, PRODUCE OR CAUSE TO BE PRODUCED, ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS WHICH WILL BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THE INDIAN INCOMETAX ACT, 1922 (11 OF 1922), OR UNDER THIS ACT, OR (HEREINAFTER IN THIS SECTION (C) ANY PERSON IS IN POSSESSION OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING S REPRESENTS EITHER AND SUCH MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THINGS REPRE SENTS EITHER [WHICH HAS NOT BEEN, OR WOULD NOT BE, DISCLOSED 69 ] FOR THE PURPOSES OF THE INDIAN INCOME-TAX ACT, 1922 (11 OF 1922), OR THIS ACT (HER EINAFTER IN THIS SECTION REFERRED TO AS THE UNDISCLOSED INCOME OR PROPERTY), [THEN, (A) THE [DIRECTOR GENERAL OR DIRECTOR] OR THE [CHI EF COMMISSIONER OR COMMISSIONER], AS THE CASE MAY BE, MAY AUTHORISE AN Y [JOINT DIRECTOR], JOINT COMMISSIONER], [ASSISTANT DIRECTOR [OR DEPUT Y DIRECTOR]], ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER] OR INCOME-TAX OFFICER], OR (B) SUCH [JOINT DIRECTOR], OR [JOINT COMMISSIONE R], AS THE CASE MAY BE, MAY AUTHORISE ANY [ASSISTANT DIRECTOR [OR DEPUTY DIREC TOR]], [ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER ] OR INCOME-TAX OFFICER], ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 14 (THE OFFICER SO AUTHORISED IN ALL CASES BEING HEREI NAFTER REFERRED TO AS THE AUTHORISED OFFICER) TO] (I) ENTER AND SEARCH ANY [BUILDING, PLACE, VESSEL, VEHICLE OR AIRCRAFT] WHERE HE HAS REASON TO SUSPECT THAT SUCH BOOKS OF ACCOUNT, O THER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THI NG ARE KEPT; (II) BREAK OPEN THE LOCK OF ANY DOOR, BOX, LOCKER, SAFE, ALMIRAH OR OTHER RECEPTACLE FOR EXERCISING THE POWERS CONFERRED BY C LAUSE (I) WHERE THE KEYS THEREOF ARE NOT AVAILABLE; [(IIA) SEARCH ANY PERSON WHO HAS GOT OUT OF, OR I S ABOUT TO GET INTO, OR IS IN, THE BUILDING, PLACE, VESSEL, VEHICLE OR AIRCRAFT, IF TH E AUTHORISED OFFICER HAS REASON TO SUSPECT THAT SUCH PERSON HAS SECRETED ABO UT HIS PERSON ANY SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING;] [(IIB) REQUIRE ANY PERSON WHO IS FOUND TO BE IN POSSESSION OR CONTROL OF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN T HE FORM OF ELECTRONIC RECORD AS DEFINED IN CLAUSE (T) OF SUB-SECTION (1) OF SECTION 2 OF THE INFORMATION TECHNOLOGY ACT, 2000 (21 OF 2000), TO A FFORD THE AUTHORISED OFFICER THE NECESSARY FACILITY TO INSPECT SUCH BOOK S OF ACCOUNT OR OTHER DOCUMENTS;] (III) SEIZE ANY SUCH BOOKS OF ACCOUNT, OTHER DOCUM ENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND AS A RESULT OF SUCH SEARCH: [ PROVIDED THAT BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, BEING STOCK-IN-TRADE OF THE BUSINESS, FOUND AS A RESULT O F SUCH SEARCH SHALL NOT BE SEIZED BUT THE AUTHORISED OFFICER SHALL MAKE A NOTE OR INVENTORY OF SUCH STOCK-IN-TRADE OF THE BUSINESS;] (IV) PLACE MARKS OF IDENTIFICATION ON ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR MAKE OR CAUSE TO BE MADE EXTRACTS OR COPIES THER EFROM; (V) MAKE A NOTE OR AN INVENTORY OF ANY SUCH MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING : ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 15 [ PROVIDED THAT WHERE ANY BUILDING, PLACE, VESSEL, VEHICLE OR AIRCRAFT REFERRED TO IN CLAUSE (I) IS WITHIN THE AREA OF JURISDICTION OF ANY 87 [CHIEF COMMISSIONER OR COMMISSIONER], BUT SUCH [CHIEF COMMISSIONER OR COMM ISSIONER] HAS NO JURISDICTION OVER THE PERSON REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C), THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SECTION [120], IT SHALL BE COMPETENT FOR HIM TO EXERCISE THE POWERS UNDER THIS SUB-SECTI ON IN ALL CASES WHERE HE HAS REASON TO BELIEVE THAT ANY DELAY IN GETTING THE AUT HORISATION FROM THE [CHIEF COMMISSIONER OR COMMISSIONER] HAVING JURISDICTION O VER SUCH PERSON MAY BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE :] [ PROVIDED FURTHER THAT WHERE IT IS NOT POSSIBLE OR PRACTICABLE TO TA KE PHYSICAL POSSESSION OF ANY VALUABLE ARTICLE OR THING AND REM OVE IT TO A SAFE PLACE DUE TO ITS VOLUME, WEIGHT OR OTHER PHYSICAL CHARACTERISTIC S OR DUE TO ITS BEING OF A DANGEROUS NATURE, THE AUTHORISED OFFICER MAY SERVE AN ORDER ON THE OWNER OR THE PERSON WHO IS IN IMMEDIATE POSSESSION OR CONTROL TH EREOF THAT HE SHALL NOT REMOVE, PART WITH OR OTHERWISE DEAL WITH IT, EXCEPT WITH THE PREVIOUS PERMISSION OF SUCH AUTHORISED OFFICER AND SUCH ACTION OF THE A UTHORISED OFFICER SHALL BE DEEMED TO BE SEIZURE OF SUCH VALUABLE ARTICLE OR TH ING 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-TR ADE OF THE BUSINESS.] [(1A) WHERE ANY (CHIEF COMMISSIONER OR COMMISSIONE R], IN CONSEQUENCE OF INFORMATION IN HIS POSSESSION, HAS REASON TO SUSPEC T THAT ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING IN RESPECT OF WHICH AN OFFICER HAS BEEN AUTHORISED BY THE [DIRECTOR GENERAL OR DIRECTOR] OR ANY OTHER [CHIEF COMMISSIONER OR COMMI SSIONER] OR ANY SUCH [JOINT DIRECTOR] OR [JOINT COMMISSIONER] AS MAY BE EMPOWERED IN THIS BEHALF BY THE BOARD TO TAKE ACTION UNDER CLAUSES (I) TO (V) O F SUB-SECTION (1) ARE OR IS KEPT IN ANY BUILDING, PLACE, VESSEL, VEHICLE OR AIRCRAFT NOT MENTIONED IN THE AUTHORISATION UNDER SUB-SECTION (1), SUCH [CHIEF CO MMISSIONER OR COMMISSIONER] MAY, NOTWITHSTANDING ANYTHING CONTAIN ED IN SECTION [120], AUTHORISE THE SAID OFFICER TO TAKE ACTION UNDER ANY OF THE CLAUSES AFORESAID IN RESPECT OF SUCH BUILDING, PLACE, VESSEL, VEHICLE OR AIRCRAFT.] (2) THE AUTHORISED OFFICER MAY REQUISITION THE SER VICES OF ANY POLICE OFFICER OR OF ANY OFFICER OF THE CENTRAL GOVERNMENT, OR OF BOT H, TO ASSIST HIM FOR ALL OR ANY OF THE PURPOSES SPECIFIED IN SUB-SECTION (1) [OR SU B-SECTION (1A)] AND IT SHALL BE THE DUTY OF EVERY SUCH OFFICER TO COMPLY WITH SUCH REQUISITION. ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 16 (3) THE AUTHORISED OFFICER MAY, WHERE IT IS NOT PR ACTICABLE TO SEIZE ANY SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, [FOR REASONS OTHER THAN THOSE MEN TIONED IN THE SECOND PROVISO TO SUB-SECTION (1),] SERVE AN ORDER ON THE OWNER OR TH E PERSON WHO IS IN IMMEDIATE POSSESSION OR CONTROL THEREOF THAT HE SHALL NOT REM OVE, PART WITH OR OTHERWISE DEAL WITH IT EXCEPT WITH THE PREVIOUS PERMISSION OF SUCH OFFICER AND SUCH OFFICER MAY TAKE SUCH STEPS AS MAY BE NECESSARY FOR ENSURIN G COMPLIANCE WITH THIS SUB- SECTION. [EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HE REBY DECLARED THAT SERVING OF AN ORDER AS AFORESAID UNDER THIS SUB-SECTION SHALL NOT BE DEEMED TO BE SEIZURE OF SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULL ION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING UNDER CLAUSE (III) OF SUB -SECTION (1).] (4) THE AUTHORISED OFFICER MAY, DURING THE COURSE O F THE SEARCH OR SEIZURE, EXAMINE ON OATH ANY PERSON WHO IS FOUND TO BE IN PO SSESSION OR CONTROL OF ANY BOOKS OF ACCOUNT, DOCUMENTS, MONEY, BULLION, JEWELL ERY OR OTHER VALUABLE ARTICLE OR THING AND ANY STATEMENT MADE BY SUCH PERSON DURI NG SUCH EXAMINATION MAY THEREAFTER BE USED IN EVIDENCE IN ANY PROCEEDING UN DER THE INDIAN INCOME-TAX ACT, 1922 (11 OF 1922), OR UNDER THIS ACT. [EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HE REBY DECLARED THAT THE EXAMINATION OF ANY PERSON UNDER THIS SUB-SECTION MA Y BE NOT MERELY IN RESPECT OF ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS FOU ND AS A RESULT OF THE SEARCH, BUT ALSO IN RESPECT OF ALL MATTERS RELEVANT FOR THE PURPOSES OF ANY INVESTIGATION CONNECTED WITH ANY PROCEEDING UNDER THE INDIAN INCO ME-TAX ACT, 1922 (11 OF 1922), OR UNDER THIS ACT.] [(4A) WHERE ANY BOOKS OF ACCOUNT, OTHER DOCUMENTS , MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE OR IS FOUND IN THE POSSESSION OR CONTROL OF ANY PERSON IN THE COURSE OF A SEARCH, IT MAY BE PRE SUMED (I) THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, M ONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING BELONG OR BELONGS T O SUCH PERSON ; (II) THAT THE CONTENTS OF SUCH BOOKS OF ACCOUNT AN D OTHER DOCUMENTS ARE TRUE ; AND (III) THAT THE SIGNATURE AND EVERY OTHER PART OF S UCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS WHICH PURPORT TO BE IN THE HANDWRITING OF ANY PARTICULAR PERSON OR WHICH MAY REASONABLY BE ASSUMED TO HAVE B EEN SIGNED BY, OR TO ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 17 BE IN THE HANDWRITING OF, ANY PARTICULAR PERSON, AR E IN THAT PERSONS HANDWRITING, AND IN THE CASE OF A DOCUMENT STAMPED, EXECUTED OR ATTESTED, THAT IT WAS DULY STAMPED AND EXECUTED OR ATTESTED B Y THE PERSON BY WHOM IT PURPORTS TO HAVE BEEN SO EXECUTED OR ATTESTED.] (5) [***] (6) [***] (7) [***] (8) THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS SEIZED UNDER SUB-SECTION (1) [OR SUB- SECTION (1A)] SHALL NOT BE RETAINED BY THE AUTHORIS ED OFFICER FOR A PERIOD EXCEEDING [THIRTY DAYS FROM THE DATE OF THE ORDER OF ASSESSME NT UNDER [ SECTION 153A OR] CLAUSE (C) OF SECTION 158BC ] UNLESS THE REASONS FOR RETAINING THE SAME ARE RECORDED BY HIM IN WRITING AND THE APPROVAL OF THE [CHIEF COMMISSIONER, COMMISSIONER, DIRECTOR GENERAL OR DIRECTOR] FOR SUC H RETENTION IS OBTAINED : PROVIDED THAT THE [CHIEF COMMISSIONER, COMMISSIONER, DIRECT OR GENERAL OR DIRECTOR] SHALL NOT AUTHORISE THE RETENTION OF THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS FOR A PERIOD EXCEEDING THIRTY DAYS AFTER ALL THE PROCEEDINGS UNDER THE INDIAN INCOME-TAX ACT, 1922 (11 OF 1922), OR THIS A CT IN RESPECT OF THE YEARS FOR WHICH THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS ARE R ELEVANT ARE COMPLETED. [(8A) AN ORDER UNDER SUB-SECTION (3) SHALL NOT BE IN FORCE FOR A PERIOD EXCEEDING SIXTY DAYS FROM THE DATE OF THE ORDER.] (9) THE PERSON FROM WHOSE CUSTODY ANY BOOKS OF ACCO UNT OR OTHER DOCUMENTS ARE SEIZED UNDER SUB-SECTION (1) [OR SUB-SECTION (1A)] MAY MAKE COPIES THEREOF, OR TAKE EXTRACTS THEREFROM, IN THE PRESENCE OF THE AUT HORISED OFFICER OR ANY OTHER PERSON EMPOWERED BY HIM IN THIS BEHALF, AT SUCH PLA CE AND TIME AS THE AUTHORISED OFFICER MAY APPOINT IN THIS BEHALF. [(9A) WHERE THE AUTHORISED OFFICER HAS NO JURISDIC TION OVER THE PERSON REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OR CLAUSE (C) OF SUB-SE CTION (1), THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS, OR ANY MONEY, BULLION, JEWELLERY O R OTHER VALUABLE ARTICLE OR THING (HEREAFTER IN THIS SECTION AND IN SECTIONS 132A AND 132B REFERRED TO AS THE ASSETS) SEIZED UNDER THAT SUB-SECTION SHALL BE HAND ED OVER BY THE AUTHORISED OFFICER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER S UCH PERSON WITHIN A PERIOD OF SIXTY DAYS FROM THE DATE ON WHICH THE LAST OF THE A UTHORISATIONS FOR SEARCH WAS EXECUTED AND THEREUPON THE POWERS EXERCISABLE BY TH E AUTHORISED OFFICER UNDER SUB-SECTION (8) OR SUB-SECTION (9) SHALL BE EXERCIS ABLE BY SUCH ASSESSING OFFICER.] ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 18 (10) IF A PERSON LEGALLY ENTITLED TO THE BOOKS OF A CCOUNT OR OTHER DOCUMENTS SEIZED UNDER SUB-SECTION (1) [OR SUB-SECTION (1A)] OBJECTS FOR ANY REASON TO THE APPROVAL GIVEN BY THE [CHIEF COMMISSIONER, COMMISSIONER, DIR ECTOR GENERAL OR DIRECTOR] UNDER SUB-SECTION (8), HE MAY MAKE AN APPLICATION T O THE BOARD STATING THEREIN THE REASONS FOR SUCH OBJECTION AND REQUESTING FOR THE R ETURN OF THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS [AND THE BOARD MAY, AFTER GIVING TH E APPLICANT AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS AS IT THINKS FIT]. (11) [***] (11A) [***] (12) ***] [(13) THE PROVISIONS OF THE CODE OF CRIMINAL PROC EDURE, 1973 (2 OF 1974), RELATING TO SEARCHES AND SEIZURE SHALL APPLY, SO FA R AS MAY BE, TO SEARCHES AND SEIZURE UNDER SUB-SECTION (1) OR SUB-SECTION (1A).] (14) THE BOARD MAY MAKE RULES IN RELATION TO ANY SEARCH OR SEIZURE UNDER THIS SECTION ; IN PARTICULAR, AND WITHOUT PREJUDICE TO T HE GENERALITY OF THE FOREGOING POWER, SUCH RULES MAY PROVIDE FOR THE PROCEDURE TO BE FOLLOWED BY THE AUTHORISED OFFICER (I) FOR OBTAINING INGRESS INTO [ANY BUILDING, PLAC E, VESSEL, VEHICLE OR AIRCRAFT] TO BE SEARCHED WHERE FREE INGRESS THERETO IS NOT AV AILABLE ; (II) FOR ENSURING SAFE CUSTODY OF ANY BOOKS OF ACC OUNT OR OTHER DOCUMENTS OR ASSETS SEIZED. [EXPLANATION 1.FOR THE PURPOSES OF SUB-SECTION (9A ), EXECUTION OF AN AUTHORISATION FOR SEARCH SHALL HAVE THE SAME MEANI NG AS ASSIGNED TO IT IN EXPLANATION 2 TO SECTION 158BE .] EXPLANATION 2.IN THIS SECTION, THE WORD PROCEEDI NG MEANS ANY PROCEEDING IN RESPECT OF ANY YEAR, WHETHER UNDER THE INDIAN IN COME-TAX ACT, 1922 (11 OF 1922), OR THIS ACT, WHICH MAY BE PENDING ON THE DAT E ON WHICH A SEARCH IS AUTHORISED UNDER THIS SECTION OR WHICH MAY HAVE BEE N COMPLETED ON OR BEFORE SUCH DATE AND INCLUDES ALSO ALL PROCEEDINGS UNDER T HIS ACT WHICH MAY BE COMMENCED AFTER SUCH DATE IN RESPECT OF ANY YEAR.] 9.1 SECTION 153A OF THE IT ACT STARTS WITH THE WOR D NOTWITHSTANDING ANYTHING CONTAINED, IT IS NON-OBSTANTE CLAUSE. FOR APPLICABILITY OF ABOVE PROVISION, THE INITIATION OF SEARCH IS NECESSARY. O NCE A WARRANT OF AUTHORIZATION OR REQUISITION IS ISSUED AND SEARCH IS CONDUCTED AND P ANCHNAMA IS DRAWN, THE COMPLETED ASSESSMENTS FOR THE ALL THE RELEVANT YEAR S WOULD GET REOPENED IRRESPECTIVE OF WHETHER ANY INCRIMINATING MATERIAL IS FOUND OR NOT IN RELATION TO A ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 19 PARTICULAR AY. IN OTHER WORDS, EVEN IF THE MATERIAL FOUND SHOWS THE CONCEALMENT IN ONLY ONE YEAR, ALL THE COMPLETED ASSESSMENTS FALLIN G IN THE PERIOD OF SIX AYS PRECEDING THE YEAR OF SEARCH WILL GET REOPEN. THERE WAS AN IDENTICAL PROVISION CONTAINED IN CHAPTER XIV-B OF THE ACT, WHICH PROVID ES THAT WHERE AFTER 30 TH JUNE, 1995, A SEARCH IS INITIATED U/S 132 OR BOOKS ACCOUN TS ETC. ARE REQUISITIONED U/S 132A, THE AO SHALL PROCEED TO ASSESS UNDISCLOSED IN COME IN ACCORDANCE WITH PROVISIONS OF CHAPTER XIV-B FOR MAKING ASSESSMENT F OR BLOCK PERIOD BUT IN THE BLOCK ASSESSMENTS, THE QUESTION OF ASSESSING AN UND ISCLOSED INCOME IN RELATION TO ANY AY WAS RESTRICTED TO THE INCRIMINATING MATERIAL ON UNDISCLOSED ASSETS DISCOVERED DURING THE COURSE OF SEARCH AND SEIZURE OR IN THE POST SEARCH INQUIRY THE MATERIAL WAS RELATABLE TO SUCH EVIDENCE DISCOVE RED IN SEARCH. THE INCOME ASSESSED IN THE REGULAR ASSESSMENTS WAS NOT TO BE C ONSIDERED IN THE BLOCK ASSESSMENTS. HOWEVER, IN THE PRESENT PROVISIONS U/S 153A, THERE IS NO SUCH PROVISION PROVIDED IN THE ACT. ONCE WARRANT OF AUTH ORIZATION IS ISSUED AND THE SEARCH IS CONDUCTED AND PANCHNAMA IS DRAWN, THE ASS ESSMENTS FOR ALL THE SEVEN YEARS INCLUDING THE CURRENT YEAR HAVE TO BE COMPLET ED U/S 153A, 153B AND 153C. EVEN THE ASSESSMENTS WHICH ARE COMPLETED BEFORE THE DATE OF SEARCH SHALL GET REOPENED AND THOSE ASSESSMENTS WHERE THE PROCEEDING S ARE PENDING AT THE TIME OF SEARCH SHALL ABATE. THE AO, THEREFORE, SHALL ASSESS OR REASSESS SUCH INCOME FOR ALL THESE YEARS. 9.2 THE ABOVE PROVISION , THEREFORE, PROVIDES FOR R EOPENING OF THE COMPLETED ASSESSMENT OR ABATEMENT OR THE PENDING ASSESSMENTS TAKES PLACE IRRESPECTIVE OF WHETHER ANY INCRIMINATING MATERIAL IS FOUND DURING THE COURSE OF SEARCH OR NOT. IT CAN BE ILLUSTRATED BY TAKING AN EXAMPLE THAT IF DUR ING THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS, CERTAIN UNACCOUNTED VALUABLES OR MONEY IS FOUND AT THE TIME OF SEARCH WITHOUT THERE BEING INCRIMINATING MATERIA L OR DOCUMENT FOR ANY OTHER YEAR OR YEARS, EVEN THEN ALL THE SIX ASSESSMENTS PR ECEDING THE ASSESSMENT YEAR IN WHICH SEARCH TOOK PLACE SHALL GET REOPENED. SIMILAR LY, IF REQUISITION IS MADE THEN IRRESPECTIVE OF WHETHER THERE IS ANYTHING INCRIMINA TING FOUND AGAINST HIM IN RELATION TO OTHER YEAR OR YEARS OR NOT, THE ASSESSE E HAS TO UNDERGO THE RIGOR OF THE ASSESSMENT PROCEEDINGS FOR ALL THE SIX YEARS AS WEL L AS THE YEAR UNDER SEARCH. 9.3. SECTION 153A WOULD BE APPLICABLE WHERE A SEARC H IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A OF THE ACT AFTER 31 ST MAY, 2003. THEREFORE, BEFORE INVOKING THE PROVISIONS OF SECTION 153A OF THE ACT IT WOULD BE N ECESSARY TO COMPLY WITH THE PROVISIONS CONTAINED UNDER SECTION 132(1) OF THE AC T. SALIENT FEATURE OF SECTION ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 20 132(1) IS THAT WHERE THE DIRECTOR GENERAL OR DIRECT OR OR THE CHIEF COMMISSIONER OR COMMISSIONER, IN CONSEQUENCE OF INFORMATION IN HIS POSSESSION HAS REASON TO BELIEVE THAT ANY PERSON FAILED TO PRODUCE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS IN RESPONSE TO SUMMONS OR THAT ANY PERSON TO WHOM SUMM ONS HAVE BEEN ISSUED HAS NOT OR MIGHT NOT OR WOULD NOT PRODUCE ANY BOOKS OF ACCOUNTS OR DOCUMENTS OR THAT ANY PERSON IS IN POSSESSION OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE IN HIS POSSESSION, WHICH HAS NOT BEEN OR WO ULD NOT BE DISCLOSED FOR THE PURPOSE OF THIS ACT (HEREINAFTER REFERRED TO AS UN DISCLOSED INCOME OR PROPERTY) THEN THE DIRECTOR GENERAL, DIRECTOR OR CHIEF COMMI SSIONER OR COMMISSIONER, AS THE CASE MAY BE, MAY AUTHORIZE ANY JOINT DIRECTOR, ASSISTANT DIRECTOR, ASSISTANT COMMISSIONER OF DY. COMMISSIONER OF INCOMETAX, CALL ED THE AUTHORIZED OFFICER, TO ENTER AND SEARCH ANY BUILDING, PLACE, VESSEL, VEHIC LE OR AIR-CRAFT, ETC. WHERE HE HAS REASON TO SUSPECT THAT SUCH BOOKS OF ACCOUNTS, OTHE R DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE KE PT, BREAK OPEN THE LOCK OF ANY DOOR, ETC., SEARCH ANY PERSON WHO IS ABOUT TO GO FR OM THE ABOVE PREMISES, REQUIRE ANY PERSON TO ACCOUNT FOR THE BOOKS OF ACCOUNTS OR DOCUMENTS, SEIZE ANY SUCH BOOKS OF ACCOUNTS OR DOCUMENTS, MONEY, BULLION, JEW ELLERY, ETC. OR THINGS FOUND AS A RESULT OF SUCH SEARCH AND MAY PLACE MARK OF IDENT IFICATION ON ANY BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR TAKE COPY THEREOF AN D TO PREPARE INVENTORY OF THE SAME. THE PURPOSE OF SECTION 132 FOR ISSUE OF WARR ANT OF AUTHORIZATION IS TO UNEARTH, DETECT AND TO TAKE POSSESSION OF THE UNACC OUNTED/UNDISCLOSED INCOME OR PROPERTY. THE MERE ISSUE OF WARRANT OF AUTHORIZATI ON WITHOUT THERE BEING SEARCH OF THE PREMISES MENTIONED IN THE WARRANT OF AUTHORIZAT ION WOULD BE MEANINGLESS AND WOULD NOT SERVE THE PURPOSE OF SECTION 132 OF THE A CT. IT MAY BE ILLUSTRATED BY TAKING AN EXAMPLE THAT IF WARRANT OF AUTHORIZATION UNDER SECTION 132 IS ISSUED IN THE NAME OF A AFTER 31.5.2003 BUT HIS PREMISES IS NOT SEARCHED FOR THE PURPOSE OF EXECUTING THE WARRANT OF AUTHORIZATION AND THE W ARRANT OF AUTHORIZATION IS KEPT UNEXECUTED, THE QUESTION ARISES WHETHER THE ASSESSI NG OFFICER STILL SHOULD PROCEED UNDER SECTION 153A OF THE ACT FOR THE PURPOSE OF FR AMING THE ASSESSMENT OR REASSESSMENT OF THE SIX ASSESSMENT YEARS IMMEDIATEL Y PRECEDING THE ASSESSMENT YEARS RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH S EARCH IS INITIATED OR REQUISITION IS MADE WITHOUT EXECUTING THE SEARCH WARRANT. THE A NSWER WOULD BE NO BECAUSE IT WOULD BE A FUTILE EXERCISE. IT MAY BE ADDED HERE THAT JURISDICTION CAN BE ASSUMED BY THE ASSESSING OFFICER TO INITIATE ASSESSMENT PRO CEEDINGS TO ISSUE NOTICES ONCE SEARCH IS INITIATED UNDER SECTION 132/REQUISITION M ADE UNDER SECTION 132A. HE GETS ACTUAL JURISDICTION ONLY ON ISSUE OF NOTICE, WHICH COULD BE ISSUED UNDER SECTION 153A (UNLIKE SECTION 158BC(A) IN BLOCK ASSESSMENT) WITH NO NECESSITY FOR INFERENCE OF ESCAPEMENT OF INCOME OR UNDER-ASSESSMENT AS UNDE R SECTION 147. SHOULD IT MEAN THAT A MERE SEARCH WILL ENABLE REASSESSMENT PR OCEEDINGS BY-PASSING OR ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 21 IGNORING THE REQUIREMENTS OF SECTION 147. THE ONLY PART OF PROCEDURE DISPENSED WITH UNDER SECTION 153A OF IT ACT ON COMPARISON WIT H SECTION 147 IS THAT THERE IS NO REASON FOR RECORDING REASONS AND FOR APPROVAL BY HIGHER AUTHORITIES BEFORE ISSUE OF NOTICE OF REASSESSMENT. FURTHER, THERE CA NNOT BE AUTOMATIC JURISDICTION FOR 6 BACK YEARS EVEN FOR THOSE ENTITIES WHICH MAY NOT BE IN EXISTENCE FOR ALL THE SIX YEARS INDICATING THAT THE PROVISION IS EXPECTED TO BE REASONABLY EXERCISED. IT SHOULD THEREFORE FOLLOW THAT THERE SHOULD BE PRIMA FACIE INFERENCE OF LIABILITY FOR INVOKING JURISDICTION UNDER SECTION 153A OF THE IT ACT. WE MAY ADD THAT IN SECTION 153A(B) IT IS SPECIFICALLY PROVIDED THAT THE ASSESS ING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME OF SIX YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEARS RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE. IT WOULD, THEREFORE, CLARIFY THAT NOT ONLY T HE WARRANT OF AUTHORIZATION IS TO BE ISSUED IN THE NAME OF THE ASSESSEE BUT SEARCH SH ALL HAVE TO BE NECESSARILY CONDUCTED OR IN CASE OF REQUISITION UNDER SECTION 1 32A, THE REQUISITION IS TO BE MADE ACTUALLY. HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CHANDRA PRAKASH AGRAWAL V. CIT; 287 ITR 172 CONSIDERING THE DEFINIT ION OF REQUISITION UNDER SECTION 132A OF THE ACT AS IS REFERRED TO IN SECTIO N 158BA OF THE ACT OBSERVED THAT THE WORD REQUISITION MEANS TAKING OF ACTUAL POSSE SSION. THE REQUISITION IS COMPLETE ONLY WHEN THE SEIZED BOOKS OF ACCOUNTS AND OTHER DOCUMENTS WHICH HAVE BEEN REQUISITIONED HAVE BEEN DELIVERED TO THE REQUI SITIONING AUTHORITY. THE PROVISIONS OF SECTION XIV-B OF THE ACT WOULD COME I NTO PLAY ONLY WHEN THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ASSETS ARE ACTUALLY RECEIVED BY THE ASSESSING OFFICER PURSUANT TO THE REQUISITION MADE UNDER SECT ION 132A. IT WAS HELD - HELD, THAT NO SEARCH UNDER SECTION 132 HAD BEEN CONDUCTED BY THE INCOMETAX DEPARTMENT. THE SEARCH, IF ANY, WAS COND UCTED ON JUNE 7/8 OF 2001 BY THE CENTRAL EXCISE DEPARTMENT. THE INCOMET AX DEPARTMENT HAD SENT A REQUISITION ON MARCH 27, 2002 UNDER SECTION 132A OF THE ACT REQUISITIONING THE BOOKS OF ACCOUNTS AND OTHER DOCU MENTS SEIZED BY THE CENTRAL EXCISE DEPARTMENT. THE RECORD OF THE PROCE EDING DATED APRIL 18, 2002 SHOWED THAT THE REQUISITION WAS NOT FULLY EXEC UTED AS ALL THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS HAD NOT BEEN DELIVERED TO THE REQUISITIONING AUTHORITY. THE PROCEEDINGS INITIATED UNDER SECTION 148 WERE VALID. HOWEVER IN THE PROCEEDINGS FOR REASSESSMENT UNDER SECTION 1 48 OF THE ACT, MATERIAL OR EVIDENCE RELATABLE TO THE DOCUMENTS FOR WHICH THE R EQUISITION HAD BEEN SENT UNDER SECTION 132A COULD NOT BE TAKEN INTO CONSIDER ATION. ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 22 THE LEARNED DEPARTMENTAL REPRESENTATIVE FILED COPIE S OF WARRANT OF AUTHORIZATION UNDER SECTION 132 OF THE ACT DATED 29-10-2004 WHIC H ARE ISSUED IN THE NAME OF K. M. SHAH CHARITABLE TRUST, MANSUKHBHAI K. SHAH, WIT H THE DIRECTION TO FIND VALUABLE ARTICLES OR THINGS IN INDIAN OVERSEAS BANK AT DIFFERENT BRANCHES. IN THE SAID WARRANT OF AUTHORIZATION ALSO, THE AUTHORIZED OFFICER WAS DIRECTED TO ENTER AND SEARCH THE BUILDING, ETC. PERSONS AND TO SEIZE BOOKS OF ACCOUNTS, DOCUMENTS, MONEY, BULLION, JEWELLERY, ETC. AS ARE PROVIDED UND ER SECTION 132 OF THE ACT NOTED ABOVE. ACCORDING TO SECTION 132(14), EXECUTION OF A N AUTHORIZATION SHALL HAVE SAME MEANING ASSIGNED IN EXPLANATION 2 TO SECTION 1 58BE, WHICH PROVIDES AUTHORIZATION IS DEEMED TO HAVE BEEN EXECUTED ON CO NCLUSION OF SEARCH AS RECORDED IN PANCHNAMA. THEREFORE, ACTUAL SEARCH SHA LL HAVE TO BE CARRIED OUT NECESSARILY BEFORE PROCEEDING U/S 153A. RULE 112 OF IT RULES IS ALSO NOT SATISFIED IN CASE OF ASSESSEE. SERVICE OF WARRANT ON BANK MAN AGER OF TRUST IS NOT SERVICE ON ASSESSEE IN INDIVIDUAL CASE OF ASSESSEE. 9.4 IT IS UNDISPUTED FACT THAT ASSESSEE IS MANAGING TRUSTEE OF THE TRUST. THE SURVEY WAS CONDUCTED IN THE CASE OF THE TRUST ON 28-10-2004. THE STATEMENT OF THE ASSESSEE WAS RECORDED ON OATH UNDER SURVEY I N THE PREMISES OF THE TRUST. THE DETAILS OF THE TRUST WERE CALLED FOR IN THE STA TEMENT OF THE ASSESSEE. CERTAIN BANK ACCOUNTS IN THE NAME OF THE TRUST WERE FOUND D URING THE COURSE OF SURVEY WHICH WAS NOT REFLECTED IN THE BOOKS OF ACCOUNT OF THE TRUST. THE ASSESSEE ADMITTED THE AMOUNT DEPOSITED IN THE ACCOUNTS AS HIS PERSONA L MONEY, BUT IN THE LATER PORTION OF THE STATEMENT HE HAS EXPLAINED THAT SINC E HIS PERSONAL BOOKS OF ACCOUNT FOR THE CURRENT YEAR ARE NOT WRITTEN, THEREFORE, IT CANNOT BE EXPLAINED AND ASSESSEE FURTHER STATED THAT HE WILL FURNISH THE SAME DETAIL S IF AVAILABLE. ADMITTEDLY, IT IS A FACT THAT ALL THE BANK ACCOUNTS WHETHER DISCLOSED O R NOT REFLECTED IN THE BOOKS OF THE TRUST ARE BELONGING TO THE TRUST ONLY. NO UNDIS CLOSED INCOME IN THE NAME OF THE ASSESSEE WAS FOUND EITHER DURING THE COURSE OF SURVEY OR THE SEARCH. NO INDEPENDENT OR CORROBORATIVE EVIDENCE WAS FOUND AGA INST THE ASSESSEE THAT THE MONEY DEPOSITED IN THE BANK ACCOUNT OF THE TRUST BE LONGS TO ASSESSEE IN HIS INDIVIDUAL CAPACITY. THE ASSESSEE IN HIS LATER STAT EMENT RECORDED BEFORE ASSESSING OFFICER ON 24-12-2004 RETRACTED FROM HIS EARLIER ST ATEMENT AND EXPLAINED THAT THE AMOUNT SEIZED FROM THE BANK ACCOUNTS OF T HE TRUST DID NOT BELONG TO HIM BECAUSE THE SAME BELONG TO THE TRUST ONLY. EXCEPT THE STATE MENT RECORDED ON OATH DURING THE COURSE OF SURVEY, THERE IS NO OTHER MATERIAL OR EVIDENCE AVAILABLE ON RECORD TO PROVE THAT THE MONEY DEPOSITED IN THE BANK ACCOUNT OF THE TRUST BELONG TO THE ASSESSEE IN HIS INDIVIDUAL CAPACITY. IT IS WELL SET TLED THAT ADMISSIONS ARE NOT CONCLUSIVE PROOF OF MATTER. THEY MAY BE SHOWN TO BE UNTRUE OR HAVE BEEN MADE ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 23 UNDER MISTAKE OF FACTS OR LAW. CIRCUMSTANCES HAVE T O BE SEEN UNDER WHICH SAME ARE MADE. IT CAN BE WITHDRAWN UNLESS IT IS ESTOPPEL S AND CONCLUSIVE. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF KISHANLA L SHIVCHAND 88 ITR 293 HELD IT IS AN ESTABLISHED PRINCIPLE OF LAW THAT A PARTY IS ENTITLED TO SHOW AND PROVE THAT AN ADMISSION MADE BY HIM WAS IN FACT NOT CORRECT AN D TRUE. HON'BLE SUPREME COURT OF INDIA IN THE CASE OF PULLANGODE RUBBER PRO DUCT CO. LTD. 91 ITR 18 HELD THAT ASSESSEE SHOULD BE GIVEN OPPORTUNITY TO SHOW THAT ADMISSION IS INCORRECT OR DOES NOT SHOW CORRECT STATE OF FACTS. HON'BLE MADR AS HIGH COURT IN THE CASE OF S. KHADERKHAN SON (SUPRA) HELD SECTION 133A DOES NOT EMPOWER ANY ITO TO EXAMINE ANY PERSON ON OATH, SO STATEMENT RECORDED U /S 133A HAS NO EVIDENTIARY VALUE AND ANY ADMISSION MADE DURING SUCH STATEMENT CANNOT BE MADE BASIS OF ADDITION. CONSIDERING THE ABOVE DISCUSSION IT IS CLEAR THAT THERE IS NO INCRIMINATING EVIDENCE AVAILABLE ON RECORD TO SHOW THAT THE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF THE TRUST BELONG TO THE ASSESSE E IN HIS INDIVIDUAL CAPACITY. THE ASSESSEE HAS BEEN ABLE TO EXPLAIN THAT HIS ADMISSIO N WAS IN FACT INCORRECT OR NOT TRUE. THE STATEMENT OF THE ASSESSEE RECORDED BEING MANAGING TRUSTEE OF THE TRUST ON OATH ON DATED 28-10-2004 THUS CANNOT BE RELIED U PON TO PROCEED AGAINST THE ASSESSEE U/S 153A IN HIS INDIVIDUAL CAPACITY. WE MA Y ALSO NOTE HERE THAT THE AMOUNT LYING IN THE BANK ACCOUNTS OF THE TRUST WERE CONVERTED INTO PD ACCOUNT OF THE DEPARTMENT AND ADMITTEDLY IN THE CASE OF THE TR UST ADDITION OF RS.1,93,99,865/- WAS MADE ON PROTECTIVE BASIS IN ASSESSMENT YEAR 200 5-06 AND TRUST WAS GIVEN BENEFIT OF EXEMPTION U/S 11 READ WITH SECTION 12A O F THE IT ACT. THE AMOUNT LYING IN PD ACCOUNT OUT OF THE BANK ACCOUNT OF THE TRUST WAS APPROPRIATED BY THE ASSESSING OFFICER AGAINST THE DEMAND RAISED IN THE CASE OF THE TRUST U/S 154 OF THE IT ACT. LATER ON, REFUND WAS ALSO GRANTED OUT OF TH E SAME AMOUNT IN THE CASE OF THE TRUST. THESE FACTS THUS WOULD SHOW THAT ULTIMATELY THE REVENUE DEPARTMENT ACCEPTED SUBSTANTIVE ASSESSMENT IN CASE OF TRUST AN D THAT THE AMOUNT DEPOSITED IN THE BANK ACCOUNTS OF THE TRUST WHICH WERE NOT REFLE CTED IN THE ACCOUNTS OF THE TRUST BELONGS TO THE TRUST ONLY. CONSIDERING THE FACTS OF THE CASE AND THE WARRANT OF AUTHORIZATION AND THE PANCHNAMA PRODUCED BEFORE US, IT IS CLEAR THAT THE WARRANT OF AUTHORIZATION WAS ISSUED IN THE NAME OF THE TRUS T AND THE ASSESSEE BEING THE MANAGING TRUSTEE OF THE TRUST. THE WARRANT OF AUTH ORIZATION WAS ALSO EXECUTED UPON THE BANK MANAGER OF INDIAN OVERSEAS BANK IN RE SPECT OF SEVERAL BANK ACCOUNTS OF THE TRUST. THUS, NO WARRANT OF AUTHORIZ ATION ISSUED IN THE NAME OF ASSESSEE IN HIS INDIVIDUAL CAPACITY AND NO WARRANT OF AUTHORIZATION IS EXECUTED IN THE INDIVIDUAL CASE OF THE ASSESSEE. NO MATERIAL IS PRODUCED BEFORE US IF ANY SEARCH IS CONDUCTED AGAINST THE ASSESSEE IN HIS INDIVIDUAL CAPACITY. IT IS ADMITTED FACT THAT WARRANT OF AUTHORIZATION IS ISSUED IN THE NAME OF T HE TRUST AND THE ASSESSEE. EVEN IF IT IS ISSUED IN JOINT (TWO) NAMES BUT IT APPEARS FROM THE FACTS AND CIRCUMSTANCES ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 24 OF THE CASE THAT NAME OF THE ASSESSEE WAS ADDED IN THE WARRANT OF AUTHORIZATION AND IN THE PANCHNAMA BEING THE ASSESSEE MANAGING TR USTEE OF THE TRUST. THUS, ASSESSEE HAS NO INDIVIDUAL LIABILITY IN THE AFORESA ID CASE. WE MAY ALSO NOTE HERE THAT LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPO N DECISION OF ALLAHABAD HIGH COURT IN THE CASE OF RAGHURAJ PRATAP SINGH AND OTHE RS (SUPRA) WHICH WAS DELIVERED ON 14-07-2006. HOWEVER, LEARNED COUNSEL F OR THE ASSESSEE RELIED UPON ANOTHER DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS SMT. VANDANA VERMA (SUPRA) WHICH WAS DELIVERED ON 09-10- 2009. THE LATTER DECISION IS BINDING FOR CONSIDERATION. MOREOVER, THE LATTER DEC ISION IN THE CASE OF SMT. VANDANA VERMA (SUPRA) IS DIRECTLY ON THE POINT IN I SSUE BECAUSE WHEN THE WARRANT IS ISSUED IN JOINT NAMES IN THE CASE OF THE TRUST A ND THE ASSESSEE, THEN AS PER THE ABOVE DECISION THE ASSESSMENTS COULD NOT HAVE BEEN FRAMED IN THE INDIVIDUAL CAPACITY/STATUS OF THE ASSESSEE WHICH IS DONE IN TH E PRESENT CASE. THE PROCEEDINGS U/S 153A OF THE IT ACT AGAINST THE ASSESSEE IN HIS INDIVIDUAL CAPACITY/STATUS ARE, THEREFORE, CLEARLY INVALID AND BAD IN LAW ON THE BA SIS OF JOINT SEARCH WARRANT SO ISSUED. THE ABOVE FINDINGS ARE ALSO SUPPORTED BY TH E OBSERVATION OF THE ASSESSING OFFICER THAT IN THESE THREE YEARS ASSESSING OFFICER ACCEPTED THE RETURNED INCOME MEANING THEREBY THAT THERE WAS NO UNDISCLOSED INCOM E BELONGS TO THE ASSESSEE IN THE ASSESSMENT YEARS UNDER APPEAL. IN VIEW OF THE A BOVE, THERE IS NO NEED TO DISCUSS OTHER DECISIONS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE. 9.5 CONSIDERING THE ABOVE PROVISIONS AS NOTED ABOVE IN THE LIGHT OF THE PROVISIONS OF SECTION 153A OF THE ACT, IT WOULD BE CLEAR THAT ONCE THE WARRANT OF AUTHORIZATION OR REQUISITION IS ISSUED AND SEARCH I S ACTUALLY CONDUCTED, PANCHNAMA IS DRAWN, THE COMPLETED ASSESSMENTS FOR A LL THE RELEVANT YEARS WOULD GET REOPENED IRRESPECTIVE OF WHETHER ANY INCRIMINAT ING MATERIAL IS FOUND OR NOT IN RELATION TO A PARTICULAR ASSESSMENT YEAR. HOWEVER THE WARRANT OF AUTHORIZATION SHALL HAVE TO BE EXECUTED BY THE AUTHORIZED OFFICER IN ORDER TO JUSTIFY INVOKING OF THE JURISDICTION BY THE ASSESSING OFFICER UNDER SEC TION 153A OF THE ACT. CONSIDERING SECTION 153A PARTICULARLY READ WITH SUB -CLAUSE (B), IT IS CLEAR THAT NOT ONLY INITIATION OF SEARCH IS MANDATORY BUT CONDUCT OF THE SEARCH IS ALSO MATERIAL. THE DECISION OF THE ALLAHABAD HIGH COURT NOTED ABOV E ALSO SUPPORTS THE ABOVE FINDINGS. AS IS NOTED ABOVE, IT IS UNDISPUTED FAC T THAT THOUGH WARRANT OF AUTHORIZATION IS ISSUED IN THE NAME OF THE ASSESSEE BEING MANAGING TRUSTEE OF THE TRUST, BUT IT IS ADMITTED FACT THAT NO SEARCH OPERA TION WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE. EVEN IN THE WARRANT OF A UTHORIZATION, THE ADDRESS OF THE PLACE TO BE SEARCHED IS NOT THE ADDRESS OF THE ASSE SSEE INDIVIDUAL. ADMITTEDLY, NO PANCHNAMA IS ALSO DRAWN IN PURSUANCE WITH THE WARRA NT OF AUTHORIZATION IN THE ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 25 CASE OF THE ASSESSEE. NO DOCUMENTS WERE SEIZED OR I MPOUNDED AS SUCH DURING THE COURSE OF SEARCH FROM THE ASSESSEE. THE WARRANT OF AUTHORIZATION DATED 29.10.2004 IN THE NAME OF THE TRUST AND THE ASSESSE E STANDS UNEXECUTED IN THE CASE OF ASSESSEE INDIVIDUAL. SINCE IN THIS CASE ONLY SU RVEY OPERATION UNDER SECTION 133A IS CONDUCTED IN THE PREMISES OF THE ASSESSEES TRUS T, IT WOULD NOT SATISFY THE REQUIREMENTS OF SECTION 153A OF THE ACT. AS SUCH, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INITIATING PROCEEDINGS OR ASSUMING VAL ID JURISDICTION UNDER SECTION 153A OF THE ACT AGAINST THE ASSESSEE. IN VIEW OF T HE ABOVE DISCUSSIONS, WE DO NOT FIND THESE TO BE THE FIT CASES FOR INITIATING THE P ROCEEDINGS U/S 153A OF THE IT ACT AGAINST THE ASSESSEE IN HIS INDIVIDUAL STATUS. WE A CCORDINGLY HOLD THAT THE PROCEEDINGS U/S153A OF THE IT ACT ARE INVALID AND B AD IN LAW, RESULTANTLY, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND Q UASHED. 10. AS A RESULT, ALL THE APPEALS OF THE ASSESSEE IN ITA NO.2878, 2879 AND 2880/AHD/2007 ARE ALLOWED. 6.1 THE ABOVE ORDER OF ITAT AHMEDABAD BENCH HAS BEE N AUTHORED BY ONE OF US (JM). ALL RELEVANT PROVISIONS HAVE BEEN CONSIDERED AND CONSIDERING THE PROVISIONS RELEVANT TO SEARCH AND SEIZURE U/S. 153A, IT WAS HE LD THAT NOT ONLY THE WARRANT OF AUTHORIZATION IS TO BE ISSUED IN THE NAME OF ASSESS EE, BUT SEARCH SHALL HAVE TO BE NECESSARILY CONDUCTED OR IN THE CASE OF REQUISITION U/S. 132A, THE REQUISITION HAS TO BE MADE ACTUALLY. IN THIS CASE, WARRANT OF AUTHORIZ ATION WAS ISSUED IN THE NAME OF THE TRUST AND THE ASSESSEE. EVEN IF IT WAS ISSUED I N JOINT NAMES, BUT IT APPEARED FROM THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE NA ME OF ASSESSEE WAS ADDED IN THE WARRANT OF AUTHORIZATION AND IN THE PANCHNAMA, BEIN G THE ASSESSEE MANAGING TRUSTEE OF THE TRUST. THUS, THE ASSESSEE HAS NO IND IVIDUAL LIABILITY IN THE AFORESAID CASE. NO SEARCH OPERATION WAS CONDUCTED IN THE PRE MISES OF THE ASSESSEE AND IN THE ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 26 WARRANT OF AUTHORIZATION, ADDRESS OF THE PLACES TO BE SEARCHED WAS NOT THE ADDRESS OF THE ASSESSEE INDIVIDUAL. IT WAS, THEREFORE, HELD THAT FOR INVOKING THE JURISDICTION BY THE AO U/S. 153A OF THE IT ACT, NOT ONLY WARRANT OF AUTHORIZATION IN NAME OF ASSESSEE BE ISSUED, INITIATION OF SEARCH IS MANDATO RY, BUT CONDUCT OF SEARCH IS ALSO MATERIAL. 6.2 CONSIDERING THE ABOVE DECISION AND THE DECISION CITED BY THE LD. COUNSEL FOR THE ASSESSEE IN THE LIGHT OF FACTS OF THE CASE, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN HOLDI NG THE ASSESSMENT ORDERS TO BE INVALID U/S. 153A OF THE IT ACT. THE LD. CIT(A) ON EXAMINATION OF THE WARRANTS OF AUTHORIZATION AND PANCHNAMA ETC. FOUND THAT NAME OF THE ASSESSEE IS NOT FOUND MENTIONED ANYWHERE, I.E., NEITHER IN THE WARRANT OF AUTHORIZATION NOR IN THE PANCHNAMA PREPARED ON THE DATE OF SEARCH. THOUGH NA ME OF ASHA OIL INDUSTRIES WAS FOUND MENTIONED IN THE WARRANT OF AUTHORIZATION U/S. 132 OF THE IT ACT, HOWEVER, SAID ASHA OIL INDUSTRIES WAS SITUATED AT 6 3 MALANPUR INDL. AREA, DISTRICT BHIND. THE ASSESSEE IN THE ORIGINAL RETURN ALSO SHO WN THE SAME ADDRESS IN RESPECT OF ASHA OIL INDUSTRIES. THE LD. CIT(A) ALSO FOUND T HAT M/S. ASHA OIL INDUSTRIES HAS NO OTHER BRANCHES WHEREAS SEARCH WARRANT HAS BEEN I SSUED IN RESPECT OF THE PREMISES LOCATED AT HOUSE NO. B-32, R.P. COLONY, TA NSEN ROAD, GWALIOR. THE SURVEY WAS CONDUCTED AT THE PREMISES OF M/S. ASHA O IL INDUSTRIES SITUATED AT 63 ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 27 MALANPUR INDUSTRIAL AREA ON THE SAME DAY, I.E., 12. 05.2008 AND DURING THE COURSE OF SEARCH, NO INCRIMINATING DOCUMENTS WERE FOUND AG AINST THE ASSESSEE. THE MATERIAL COLLECTED DURING THE COURSE OF SURVEY PROC EEDINGS THUS, CANNOT BE CONSIDERED IN THE PROCEEDINGS CONDUCTED U/S. 132 OF THE IT ACT. THEREFORE, THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT REQUISITE COND ITIONS FOR APPLICATION OF SECTION 153A HAVE NOT BEEN SATISFIED IN THIS CASE. EVEN THE PANCHNAMA WAS NOT GOT SIGNED FROM THE ASSESSEE DURING THE COURSE OF SEARCH, THER EFORE, THE LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT 153A PROCEEDINGS HAVE BEE N WRONGLY INITIATED AGAINST THE ASSESSEE AND ARE INVALID. THE DECISIONS CITED BY TH E LD. COUNSEL FOR THE ASSESSEE SQUARELY APPLY TO THE FACTS AND CIRCUMSTANCES OF TH E CASE OF THE ASSESSEE. THE DECISION IN THE CASE OF CIT VS. PROMAIN LTD. (SUPRA ) IS CLEARLY DISTINGUISHABLE ON FACTS BECAUSE NO WARRANT OF AUTHORIZATION WAS FOUND TO HAVE BEEN ISSUED IN THE NAME OF ASSESSEE AND NO SEARCH WAS CONDUCTED AGAINS T THE ASSESSEE IN THIS CASE. NO CONTRARY MATERIAL IS PRODUCED BEFORE US BY THE LD. DR TO DISPUTE THE FINDING OF FACT RECORDED BY THE LD. CIT(A). THE DECISIONS CITED BY THE LD. DR ARE CLEARLY DISTINGUISHABLE ON FACTS, AS THE ISSUE BEFORE US IN ALL THE APPEALS ARE DIFFERENT. IT IS ALSO WELL SETTLED LAW THAT THE CONDITIONS FOR INVOK ING THE JURISDICTION U/S. 153A AND 153C ARE ALTOGETHER DIFFERENT. THEREFORE, THE LD. C IT(A) WAS ALSO JUSTIFIED IN HOLDING THAT SINCE THE CONDITIONS OF SECTION 153C A RE ALSO NOT SATISFIED IN THE CASE OF ASSESSEE, THEREFORE, THE PROCEEDINGS U/S. 153A C ANNOT BE CONVERTED INTO ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 28 PROCEEDINGS U/S. 153C OF THE IT ACT. THE LD. CIT(A) ON PROPER APPRECIATION OF FACTS AND MATERIAL ON RECORD RIGHTLY DECIDED THE IS SUE IN FAVOUR OF ASSESSEE. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER O F THE LD. CIT(A). IN THE RESULT, THE DEPARTMENTAL APPEALS FAIL AND ARE ACCORDINGLY DISMI SSED. ITA NOS. 199/AGR./2012 TO 204/AGR./2012 (SMT. POON AM SHIVHARE): ITA NOS. 257/AGR./2012 TO 262/AGR./2012 (SMT. DIVYA SHIVHARE ): ITA NOS. 263/AGR./2012 TO 268/AGR./2012 (SMT. REENA SHIVHARE): 7. IN THESE APPEALS, THE REVENUE RAISED SIMILAR GRO UNDS OF APPEAL CHALLENGING THE ORDER OF LD. CIT(A) IN QUASHING THE ASSESSMENT ORDERS TREATING IT AS INVALID MERELY ON THE BASIS OF TECHNICAL DEFAULT. THE LD. R EPRESENTATIVES OF BOTH THE PARTIES SUBMITTED THAT THE FACTS ARE SAME AS HAVE BEEN CONS IDERED IN THE CASE OF PRADEEP SHIVHARE. ON FURTHER QUERY RAISED IN THESE CASES, T HE LD. DR SUBMITTED THAT THESE ASSESSEES HAVE NO PROPRIETARY CONCERNS AS PRADEEP S HIVHARE WAS HOLDING IN THE NAME OF ASHA OIL INDUSTRIES. THEREFORE, IT IS ADMIT TED FACT THAT THERE IS NO WARRANT OF AUTHORIZATION ISSUED AT ALL IN THE NAME OF THESE ASSESSEES AND EVEN NO WARRANT OF AUTHORIZATION HAS BEEN EXECUTED. THE ISSUE IS, THER EFORE, SQUARELY COVERED BY THE ORDER IN THE CASE OF PRADEEP SHIVHARE (SUPRA), RATH ER, THE FACTS IN THESE CASES ARE MORE STRONG AS IN THE CASE OF PRADEEP SHIVHARE. WE, THEREFORE, DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD . CIT(A) IN HOLDING THE ASSESSMENT ORDERS IN THESE CASES TO BE INVALID. ALL THE DEPART MENTAL APPEALS ARE THEREFORE, ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 29 LIABLE TO BE DISMISSED. WE MAY ALSO NOTE HERE THAT IN THE CASE OF SMT. DIVYA SHIVHARE AND REENA SHIVHARE, APART FROM ABOVE LEGAL GROUNDS RAISED BY THE REVENUE, THE DEPARTMENT ALSO RAISED THE ISSUE THAT THE LD. CIT(A) HAS ERRED IN NOT ADJUDICATING THE ADDITIONS ON MERITS ON SEVERAL GRO UNDS. SINCE THE ASSESSMENT ORDERS ARE HELD TO BE INVALID IN THESE CASES, THERE FORE, THE LD. CIT(A) RIGHTLY DID NOT ADJUDICATE UPON THE GROUNDS OF APPEALS ON MERITS. F URTHER, THE LD. CIT(A) ALSO HELD IN THESE CASES THAT THERE IS NO FORCE IN THE SUBMIS SIONS OF THE DEPARTMENT THAT THE PROCEEDINGS U/S. 153A MAY BE CONVERTED INTO THE PRO CEEDINGS U/S. 153C OF THE IT ACT. SUCH AN ISSUE HAS BEEN CORRECTLY DEALT WITH BY THE LD. CIT(A) HOLDING THAT THE CONDITIONS U/S. 153C ARE DIFFERENT, WHICH ARE ALSO NOT FULFILLED IN THESE CASES. THE LD. CIT(A), THEREFORE, CORRECTLY DECIDED THE ISSUE AGAINST THE REVENUE. WE, THEREFORE, FOLLOWING THE REASONS FOR DECISION IN TH E CASE OF PRADEEP SHIVHARE, CONFIRM THE ORDER OF THE LD. CIT(A) AND DISMISS ALL THE DEPARTMENTAL APPEALS. 8. BEFORE CONCLUDING THE ORDER, WE WOULD LIKE TO RE FER TO SOME OF THE DECISIONS OF HONBLE SUPREME COURT. HONBLE SUPREME COURT IN THE CASE OF POORAN MAL VS. DIRECTOR OF INSPECTION (INVESTIGATION) & ORS., 93 I TR 505 HELD THAT EVEN IF SEARCH WAS HELD TO BE ILLEGAL U/S. 132 OF THE IT ACT, THE SEIZED DOCUMENTS CAN BE USED IN LAW FOR ASSESSMENTS. HONBLE SUPREME COURT IN THE C ASE OF KAPURCHAND SHRIMAL VS. CIT, 131 ITR 451 HELD AS UNDER : ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 30 WHEN THE TRIBUNAL HOLDS THAT SUCH AN ASSESSMENT IS LIABLE TO BE SET ASIDE, THE DUTY OF THE TRIBUNAL DOES NOT END WITH MAKING A DECLARATION THAT THE ASSESSMENT IS ILLEGAL. THE PRO PER ORDER TO BE PASSED IN SUCH A CASE WOULD BE TO SET ASIDE THE ASS ESSMENT AND TO DIRECT THE ITO TO MAKE A FRESH ASSESSMENT IN ACCORD ANCE WITH THE PROCEDURE PRESCRIBED BY LAW. IT WOULD NOT BE CORREC T MERELY TO UPHOLD THE ASSESSMENT AND DIRECT THE ITO TO MAKE APPROPRIA TE MODIFICATIONS.. IT IS WELL KNOWN THAT AN APPELLATE AUTHORITY HAS TH E JURISDICTION AS WELL AS THE DUTY TO CORRECT ALL ERRORS IN THE PR OCEEDINGS UNDER APPEAL AND TO ISSUE, IF NECESSARY, APPROPRIATE DIRE CTIONS TO THE AUTHORITY AGAINST WHOSE DECISION THE APPEAL IS PREF ERRED TO DISPOSE OF THE WHOLE OR ANY PART OF THE MATTER AFRESH, UNLESS FORBIDDEN FROM DOING SO BY STATUTE. THE LD. DR DURING THE COURSE OF ARGUMENTS CONTENDED THAT EVEN IF SEARCH IS CONDUCTED IN THE CASE OF CHIRONJI LAL SHIVHARE, BUT CERTAIN MATERIAL WAS RECOVERED DURING THE COURSE OF SEARCH WHICH MAY INDICATE THE ASSESSEES OF HOLDING UNACCOUNTED MONEY. THEREFORE, EVEN IF THE ASSESSMEN T ORDERS U/S. 153A HAVE BEEN HELD TO BE INVALID AND WE HAVE CONFIRMED THE ORDER OF LD. CIT(A) IN THIS REGARD, BUT IF ANY MATERIAL INDICATING THE ASSESSEES WERE FOUND DURING THE COURSE OF SEARCH, THE DEPARTMENT IS NOT PRECLUDED FROM USING THE SAID INC RIMINATING MATERIAL/DOCUMENTS AGAINST THE ASSESSEE AS PER LAW FOR PROCEEDING AGAI NST THE ASSESSEE IN DIFFERENT PROVISIONS OF LAW IF SO ADVISED. WE, THEREFORE, FOL LOWING THE ABOVE DECISIONS DIRECT THE ASSESSING OFFICER TO PROCEED ON THE BASIS OF MA TERIAL RECOVERED AGAINST THE ASSESSEES FOR TAKING APPROPRIATE ACTION IN ACCORDAN CE WITH LAW IF SO ADVISED. WE MAY ALSO CLARIFY HERE THAT LD. REPRESENTATIVES OF B OTH THE PARTIES WERE MADE AWARE OF THE DECISION IN THE CASE OF KAPURCHAND SHRIMAL ( SUPRA) DURING THE COURSE OF ITA NOS.193 TO 198/AGR./2012 ITA NOS.199 TO 204/AGR./2012 ITA NOS. 257 TO 262/AGR./2012 ITA NOS. 263 TO 268/AGR./2012 31 HEARING TO WHICH THEY COULD NOT CONTRIBUTE MUCH ON THIS ASPECT. THE LD. REPRESENTATIVES OF BOTH THE PARTIES HAVE ALSO INTIM ATED THAT IN THE CASES OF THE PERSONS ACTUALLY SEARCHED, PROCEEDINGS ARE PENDING BEFORE THE LD. CIT(A), GWALIOR. WE MAY CLARIFY HERE THAT THE LD. CIT(A) WHERE FURTH ER APPEALS ARE PENDING OF OTHER CONCERNED PARTIES, WOULD NOT BE INFLUENCED BY THIS ORDER OF THE TRIBUNAL AND HE MAY PROCEED AGAINST CONNECTED PARTIES IN ACCORDANCE WITH LAW. WITH THESE OBSERVATIONS AND DIRECTIONS, WE DISMISS ALL THE DEP ARTMENTAL APPEALS. 9. IN THE RESULT, ALL THE DEPARTMENTAL APPEALS OF D IFFERENT ASSESSEES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY