Sh. Parma Ram Bhakar, JODHPUR V. DCIT, JODHPUR

ITA 44/JODH/2011

• Counselvise Citation: 4423314 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-09-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 15-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGALCITD R
• Assessee Lawyers: N R MERTIA
• Keywords: Search and seizure; Competent authority; Block assessment; Reason to believe
• Section: 153A; 131; 37; 132

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NOS.329, 341,342 & 330 /JODH/2010 ITA NOS. 43 & 44/JODH/2011 (A.YS. 2001-02 TO 2003-04 & 2005-06 TO 2007-08) SHRI PARMA RAM BHAKAR, VS. THE DCIT, 3-CHH, BHAGAT KI KOTHI EXTEN. CENTRAL CIRCLE-1, SCHEME, JODHPUR. JODHPUR. PAN NO. AADPB0509K (APPELLANT) (RESPONDENT) ITA NO.311/JODH/2010 (A.YS. 2007-08) THE ACIT, CENTRAL CIRCLE-1, VS. SHRI PARMA RAM BH AKAR JODHPUR. 3-CHH, VISTAR YOJNA, BHAGAT KI KOTHI, PALI ROAD, JODHPUR. PAN NO. AADPB0509K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI N.R.MERTIA DEPARTMENT BY : DR. DEEPAK SEHGALCIT-D.R. DATE OF HEARING : 17/09/2013. DATE OF PRONOUNCEMENT : 23/09/2013. 2 O R D E R PER BENCH THIS IS A BUNCH OF 07 APPEALS RELATED TO ONE ASSES SEE-SHRI PARMA RAM BHAKAR. THE APPEAL OF THE ASSESSEE FOR THE A.Y . 2001-02 AND CROSS APPEALS FOR THE A.Y. 2007-08 ARE DIRECTED AGAINST T HE SEPARATE ORDERS EACH DATED 26/02/2010 OF LD. CIT (A), CENTRAL, JAIP UR WHILE THE APPEALS OF THE ASSESSEE FOR THE A.Y. 2002-03 AND 2003-04 HA VE BEEN FILED AGAINST THE SEPARATE ORDERS EACH DATED 08/03/2010 AND APPEA LS PERTAINING TO A.Y. 2005-06 AND 2006-07 FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 22/11/2010 OF LD. CIT(A) , CENTRAL, JAIPUR. SINCE, THESE APPEALS ARE HAVING SOME COMMON ISSUES AND WERE HEARD TOGETHER, SO, THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2 IN THESE APPEALS, COMMON ISSUE RAISED BY THE ASSES SEE VIDE GROUNDS NO. 1 & 4 RELATES TO THE LEGAL ISSUE CONCERNING THE VALIDITY OF THE ASSESSMENT ORDER. 3. FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT A SE ARCH OPERATION UNDER SECTION 132 OF THE I.T. ACT, 1961 (HEREINAFTER REFE RRED TO AS ACT, FOR BREVITY) WAS CARRIED OUT ON 29/03/2007 AT ROOM NO. 403 OF HOTEL 3 SHALIMAR, JAIPUR, WHERE THE ASSESSEE WAS STAYING. DURING THE COURSE OF SEARCH OPERATION, SOME ALLEGED INCRIMINATING DOCUME NTS, NOTE BOOKS CONTAINING DETAILS OF UNEXPLAINED PAYMENTS WERE CLA IMED TO BE FOUND AND SEIZED. THEREAFTER, NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER. ASSESSEE FILED HIS RETURNS OF INCOME FOR DIFFERENT YEARS ON 08/12/2008 AND THE ASSESSMENTS WERE COMPLE TED ON 23/12/2008 AS PER THE FOLLOWING DETAILS:- ASSESSMENT YEAR INCOME DECLARED (RS.) ASSESSED INCOME (RS.) 2002 - 03 64,037 - 00 76,000 - 00 2003 - 04 60,583 - 00 7,91,960 - 00 2005 - 06 1,03,987 - 00 6,05,490 - 00 2006 - 07 1,40,639 - 00 11,59,140 - 00 2007 - 08 4,46,280 - 00 53,21,160 - 00 4. BEFORE THE LEARNED CIT(A), THE ASSESSEE CHALLENGE D THE VALIDITY OF SEARCH AND SUBMITTED THAT SEARCH IN THE CASE OF ASS ESSEE WAS CARRIED OUT ON THE INFORMATION FROM OTHER AGENCIES, BUT NO MATE RIAL OR EVIDENCE ON RECORD WAS BROUGHT SO AS TO SHOW OR ESTABLISH THE E XISTENCE OF THE REASON AUTHORIZING A VALID SEARCH AND MERELY STATING THAT ON INFORMATION FROM OTHER AGENCIES, OPERATION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT WAS NOT SUFFICIENT, VALID AND JUSTIFIED FOR HOLDING THE SEARCH AS VALID. IT WAS CONTENDED THAT AT LEAST SOME MATERIAL WAS REQUI RED FROM THE SIDE OF 4 THE AUTHORITIES FOR KNOWLEDGE OF THE ASSESSEE TO ME ET HIS CASE THAT THE SEARCH WAS A VALID AND LAWFUL SEARCH. SINCE, NO IN FORMATION OR OTHER MATERIAL WAS EITHER CONFRONTED TO THE ASSESSEE OR W AS REFERRED TO IN THE PROCEEDINGS RELATING TO THE EXISTENCE OF REASON FOR SEARCH UNDER SECTION 132 OF THE ACT, IT CLEARLY LED TO AN INFALLIBLE CON CLUSION THAT THE SEARCH WAS NOT A VALID SEARCH AND THE REASON DID NOT EXIST . RELIANCE WAS PLACED ON THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF AJIT JAIN VS. UNION OF INDIA (2000) 242 ITR 302 . THE SAID DECISION WAS AFFIRMED BY THE HON'BLE SUPREME COURT IN THE DECISION REPORTED IN (2003) 260 ITR 80 (SC). IT WAS CONTENDED THAT IN THE ASSESSEES CASE , NOTHING WAS BROUGHT ON RECORD AS TO WHAT WAS THE BASIS FOR CARRYING OUT SEARCH UNDER SECTION 132 (1) OF THE ACT. THEREFORE, THE SEARCH WAS LIAB LE TO BE QUASHED AND CANCELLED LEADING TO THE CANCELLATION OF THE IMPUGN ED ASSESSMENT ORDER. IT WAS ALSO STATED THAT THE ISSUE REGARDING VALIDIT Y OF SEARCH UNDER SECTION 132(1) OF THE ACT CAN BE RAISED IN APPEAL ALSO AND IT IS JUSTICIABLE. RELIANCE WAS PLACED ON THE FOLLOWING CASE-LAWS:- 1) ASHOK KUMAR SONI VS. DCIT (2001) 72 TTJ 323 (JD. ) 2) CIT VS. VINDHYA METAL CORPORATION AND OTHERS (19 97) 224 ITR 614 (SC) 3) SANJAY KUMAR MODY VS. DI (INV.) (2005) 278 ITR 3 14 (CAL.) 5 4) CIT VS. CHITRA DEVI SONI (2009) 313 ITR 174 (RAJ .). SLP AGAINST THIS DECISION WAS DISMISSED AS REPORTED IN (2009) 3 13 ITR (ST.) 28 5) RAGHURAJ PRATAP SINGH AND OTHERS VS. ACIT (2009) 222 CTR (ALL.) 153 6) MOHD. RAFFIQUE BHAI AND OTHERS VS. ACIT (2000) 6 7 TTJ (AHD.) 191. 5. LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS O F THE ASSESSEE DID NOT FIND MERIT IN THE SUBMISSIONS/EXPLANATION OF AS SESSEE BY OBSERVING IN PARA 3.2 OF THE IMPUGNED ORDER FOR THE A.Y. 2001-02 AS UNDER:- 3.2. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A.R. AND HAVE PERUSED THE MATERIAL ON RECORD. IN THIS CASE THE ASSTT. WAS COMPLETED U/S 153A R.W.S. 143/153B OF THE INCOME TA X ACT, 1961. AS PER SECTION 153A, IN THE CASE OF A PERSON WHERE SEARCH IS INITIATED U/S 132 AFTER 31/05/2003, THE A.O. SHALL ISSUE A NOTICE TO HIM CALLING FOR RETURN OF INCOME FOR EACH OF THE ASSTT. YEARS FALLING WITH IN 6 ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSTT. YEAR RELEVANT TO T HE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED AND SHALL ALSO ASSESS OR REASSESS THE TOTAL INCOME FOR THESE ASSTT. YEARS. THUS THE BASIC REQUI REMENT FOR EXERCISING JURISDICTION U/S 153A IS THAT SEARCH U/S 132 SHOULD HAVE BEEN TAKEN IN THE CASE OF THE CONCERNED PERSON. THEREFORE, THE MOMENT IT IS PROVED THAT SEARCH HAD TAKEN PLACE IN THE CASE OF AN ASSESSEE, THE A.O. IS JUSTIFIED IN RESORTING TO SECTION 153A AND IN MAKING ASSTT. U/S 153A. THEREFORE, THE BASIC REQUIREMENT IS WHETHER SEARCH WAS CONDUCTED O R NOT. IN THIS CASE, IT IS NOT IN DISPUTE THAT SEARCH U/S 132 WAS CONDUC TED ON THE ASSESSEE ON 29.3.2007 AND DURING THE COURSE OF SEARCH OPERATION S, SOME INCRIMINATING DOCUMENTS, NOTE BOOKS ETC. CONTAINING DETAILS OF UN EXPLAINED PAYMENTS WERE FOUND AND SEIZED BY THE DEPARTMENT. I HAVE ALS O PERUSED THE RELEVANT FOLDER FROM WHICH SEARCH U/S 132 IN THE AS SESSEE'S CASE WAS AUTHORISED. A PERUSAL OF THE SAME SHOWS THAT SEARCH WAS CONDUCTED ON THE ASSESSEE CONSEQUENT UPON AUTHROISATION U/S 132 ISSUED BY THE DIRECTOR OF INCOME TAX (INV.), JAIPUR ON 29.3.2007. IT IS ALSO SEEN THAT REASONS HAVE BEEN RECORDED BY THE DIRECTOR OF INCOM E-TAX (INV.), JAIPUR 6 AS WELL AS BY THE DIRECTOR GENERAL OF INCOME-TAX (I NV.), JAIPUR ON29.3.2007 BEFORE AUTHORISING SEARCH IN THE ASSESS EE'S CASE. THEREFORE, IT IS CLEAR THAT THE PRIMARY CONDITION OF VALID AUT HORIZATION FOR SEARCH HAVING BEEN SATISFIED, THE A.O. HAD PROPER JURISDIC TION TO FRAME ASSTT. U/S 153A IN THE ASSESSEE'S CASE. IT HAS BEEN HELD B Y THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF KUSUM LATA VS. CIT(1989)1 80 ITR 365 THAT THE COURT CANNOT GO INTO THE SUFFICIENCY OF THE INFORMA TION OR THE MATERIAL. ALL THAT HAS TO BE SEEN IS AS TO WHETHER SOME MATER IAL IN FACT EXISTED OR NOT FOR COMING TO THE OPINION AND TO HAVE REASON TO BELIEVE THAT ANY PERSON WAS IN POSSESSION OF ANY UNDISCLOSED INCOME/ PROPERTY. AS MENTIONED ABOVE, IN THE PRESENT CASE, IN CONSEQUENC E OF INFORMATION IN HIS POSSESSION AND AFTER RECORDING SATISFACTION, TH E DIT (INV.) ISSUED AUTHORIZATION U/S I32 IN THE ASSESSEE'S CASE. THERE FORE, THE PROCEEDINGS U/S 153A WERE VALIDLY INITIATED BY THE A.O. THE FAC TS OF THIS CASE ARE DIFFERENT FROM THE FACTS OF THE CASES RELIED UPON B Y THE A.R. IN THE CASE OF CHITRA DEVI SONI, THE REVENUE WAS NOT ABLE TO PR OVE THE FACTUM OF EXISTENCE OF AUTHORISATION FOR CARRYING OUT THE SEA RCH WHICH IS NOT SO IN THE PRESENT CASE SINCE THE SEARCH WAS CONDUCTED IN THIS CASE ON THE BASIS OF VALID AUTHROISATION U/S 132. FURTHER, THERE IS N O CASE OF SANJAY KUMAR MODI AT 278 ITR 314 WHICH HAS BEEN RELIED UPON BY T HE ASSESSEE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, I AM OF THE CONSI DERED VIEW THAT THE IMPUGNED ASSESSMENT ORDER IS VALID AND CANNOT BE QU ASHED. THESE GROUNDS OF APPEAL ARE, THEREFORE, DISMISSED. NOW, THE ASSESSEE IS IN APPEAL. 6. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THIS CASE THERE WAS NO SATISFACTION OF THE ASSESSING OFFICER BECAUS E A RAID WAS CONDUCTED BY THE CBI ON FALSE INFORMATION THAT THE ASSESSEE W AS POSSESSING A HUGE AMOUNT OF CASH AND THAT INFORMATION WAS PROVIDED TO THE INCOME TAX DEPARTMENT. HOWEVER, NO CASH WAS FOUND FROM THE PO SSESSION OF THE ASSESSEE NEITHER ANY INCRIMINATING DOCUMENT WAS FOU ND. IT WAS FURTHER STATED THAT NOTHING WAS REQUISITIONED FROM THE POLI CE BY THE INCOME-TAX 7 DEPARTMENT. SO, THERE WAS NO SATISFACTION OF THE A SSESSING OFFICER FOR CONDUCTING THE SEARCH ON THE ASSESSEE AND SINCE THE RE WAS NO MATERIAL TO SUGGEST SEARCH ON THE ASSESSEE, THEREFORE, THE SEAR CH WAS INVALID. 7. IN HIS RIVAL SUBMISSIONS, LD. D.R. SUBMITTED THA T INITIATION AND CONDUCT OF SEARCH IS AN ADMINISTRATIVE ACT, WHICH C ANNOT BE MADE A SUBJECT MATTER OF THE APPEAL. THEREFORE, ITAT DO N OT HAVE POWER TO EXAMINE THE ISSUE OF VALIDITY OF SEARCH. HOWEVER, HE AGREED TO PRODUCE SATISFACTION NOTE AND NOT SEARCH FOLDER TO SHOW THE FACTUM OF EXISTENCE OF THE MATERIAL. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. DURING THE COURSE OF HEARING, ON THE DIRECTION OF THIS BENCH O F THE TRIBUNAL, LEARNED C.I.T. D.R. HAD SHOWN US COPY OF THE SATISFACTION R ECORDED BY THE ASSESSING OFFICER. WE HAVE GONE THROUGH THE CERTIF IED COPY OF THE SATISFACTION NOTE FURNISHED BY THE LEARNED C.I.T. D .R. IN THE SAID NOTE, IT IS MENTIONED THAT SP CBI INFORMED TELEPHONICALLY TH AT THEY HAD GOT INFORMATION REGARDING UNDISCLOSED CASH BEING CARRIE D BY SHRI P.R. BHAKAR (THE ASSESSEE) THROUGH RELIABLE SOURCE AND DEPUTED ONE ADDITIONAL S.P.,C.B.I TO DISCUSS THE MATTER IN DETAIL, WHO MET DIT (INVESTIGATION) AND MENTIONED THAT SHRI BHAKAR WAS STAYING IN ROOM NO. 403 OF HOTEL 8 SHALIMAR, JAIPUR AND CASH WAS LIKELY TO BE HANDED O VER TO SOME PERSON. ON THE BASIS OF SAID INFORMATION, ACTION UNDER SECT ION 132 OF THE ACT WAS TAKEN BY ISSUING WARRANT OF AUTHORIZATION BY THE DI T (INVESTIGATION). WE DEEM IT PROPER TO REPRODUCE THE LATTER NO. 362 DATE D 29/03/2007 WRITTEN BY SUPERINTENDENT OF POLICE, C.B.I., JAIPUR TO THE DIRECTOR GENERAL (INVESTIGATION) OF INCOME TAX DEPARTMENT, JAPUR, WH ICH READ AS UNDER:- TO THE DIRECTOR GENERAL (INVESTIGATION), DEPARTMENT OF INCOME TAX, JAIPUR. SIR, SUB:- SOURCE INFORMATION. AN INFORMATION HAS BEEN RECEIVED FROM A RELIABLE SOURCE THAT SHRI R.K. BHAKAR R/O KOTA IS STAYING IN ROOM NO. 40 3 OF HOTEL SHALIMAR AT JAIPUR. AS PER THE SOURCE INFORMATION, HE IS CARRYING HUGE AMOUNT OF CASH WITH HIM, WHICH IS LIKELY TO BE ILLEGALLY HANDED OVER TO SOME PERSON/ PERSONS. IT IS REQUESTED THAT NECESSARY ACTION MAY BE TAKE N IN THIS MATTER AT YOUR END. YOURS FAITHFULLY, SD/- SUPT. OF POLICE SPE CBI : JAIPUR. ON THE BASIS OF THE ABOVE INFORMATION ALL THE ENQU IRIES AND SEARCH WAS CONDUCTED. IN THE INSTANT CASE, IT IS NOTICED T HAT THE INFORMATION PROVIDED, THE S.P. CBI MENTIONED THE NAME AS R.K. B HAKAR R/O KOTA AND THE SEARCH WAS CONDUCTED ON SHRI PARMA RAM BHAKAR ( P.R. BHAKAR). ASSESSEE WAS STAYING IN ROOM NO. 403 OF HOTEL SHALI MAR. IN THE INSTANT 9 CASE, AN ACTION WAS TAKEN UNDER SECTION 132(1) OF T HE ACT, THEREFORE, IT IS RELEVANT TO CONSIDER THE PROVISIONS CONTAINED IN TH E SAID SECTION WHICH READ AS UNDER:- 132(1) WHERE THE [ DIRECTOR GENERAL OR DIRECTOR] O R THE [ CHIEF COMMISSIONER OR COMMISSIONER] [OR ADDITIONAL DIRECTOR OR ADDITIONAL COMMISSIONER] [OR JOINT COMMISSIONER], IN CONSEQUENCE OF INFORMATION IN HI S POSSESSION, HAS REASON 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 SUBSECTION (1) OF SECTION 131 OF THIS ACT, OR A NOTICE UNDER SUB- SECTION (4) OF SECTION 22 OF THE INDIAN INCOME- TAX ACT, 1922 (11 OF 1922 ), OR UNDER SUB- SECTION (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 CAUS E TO BE PRODUCED, SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS AS REQUIRED BY SUCH SUMMONS OR NOTICE, OR (B) ANY PERSON TO WHOM A SUMMON 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 INCOME- TAX ACT, 1922 ( 11 OF 1922 ), OR UNDER THIS ACT, OR (C) ANY PERSON IS IN POSSESSION OF ANY MONEY, BULLION , JEWELLERY OR OTHER VALUABLE ARTICLE OR THING AND SUCH MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING REPRESENTS EITHER WHOLLY OR PARTLY INCOME OR PROPERTY [ WHICH HAS NOT BEEN, OR WOULD NOT BE DISCLOSED] FOR THE PURPOSES OF THE INDIAN INCOME- TAX ACT, 1922 (11 OF 1922 ) OR THIS ACT (HEREINAFTER IN THIS SECT ION REFERRED TO AS THE UNDISCLOSED INCOME OR PROPERTY), (A) THE [ DIRECTOR GENERAL OR DIRECTOR] OR THE [ CHIE F COMMISSIONER OR COMMISSIONER], AS THE CASE MAY BE, MAY AUTHORISE ANY [ ADDITIONAL DIRECTOR OR ADDITIONAL COMMISSIONER OR], [ASSISTANT DIRECTOR], [OR DEPUTY DIRECTOR]] [ ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER] OR INCOME- TA X OFFICER], OR (B) SUCH [ ADDITIONAL DIRECTOR OR ADDITIONAL COMMISSI ONER OR] OR [ JOINT DIRECTOR], OR [JOINT COMMISSIONER], AS THE CASE MAY BE, MAY AUTHO RISE ANY [ASSISTANT DIRECTOR [OR DEPUTY DIRECTOR]] [ ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER] OR INCOME- TAX OFFICER], 10 (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, VE HICLE OR AIRCRAFT] WHERE HE HAS REASON TO SUSPECT THAT SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING ARE KE PT; (II) BREAK OPEN THE LOCK OF ANY DOOR, BOX, LOCKER, SAF E, ALMIRAH OR OTHER RECEPTACLE FOR EXERCISING THE POWERS CONFERRED BY CLAUSE (I) WHERE THE KEYS THEREOF ARE NOT AVAILABLE; (IIA) [SEARCH ANY PERSON WHO HAS GOT OUT OF, OR IS ABOU T TO GET INTO, OR IS IN THE BUILDING, PLACE, VESSEL, VEHICLE OR AIRCRAFT, IF TH E AUTHORISED OFFICER HAS REASON TO SUSPECT THAT A SUCH PERSON HAS SECRETED ABOUT HIS P ERSON 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 POSS ESSION OR CONTROL OF ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE FORM O F ELECTRONIC RECORD AS DEFINED IN CLAUSE (T) OF SUB-SECTION (1) OF SECTION 2 OF THE INFORMATION TECHNOLOGY ACT, 2000 (21 OF 2000), TO AFFORD THE AUTHORISED OF FICER THE NECESSARY FACILITY TO INSPECT SUCH BOOKS OF ACCOUNT OR OTHER DOCUMENTS;] (III) SEIZE ANY SUCH BOOKS OF ACCOUNT, OTHER DOCUMENTS, MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING FOUND AS A RESULT O F SUCH SEARCH; [PROVIDED THAT BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING, BEING STOCK-IN- TRADE OF THE BUSINESS, FOUND AS A RESULT OF SUCH SE ARCH SHALL NOT BE SEIZED BUT THE AUTHORISED OFFICER SHALL MAKE A NOTE OR INVENTORY O F SUCH STOCK-IN-TRADE OF THE BUSINESS;] (IV) PLACE MARKS OF IDENTIFICATION ON ANY BOOKS OF ACC OUNT OR OTHER DOCUMENTS OR MAKE OR CAUSE TO BE MADE EXTRACTS OR COPIES THEREFR OM; (V) MAKE A NOTE OR AN INVENTORY OF ANY SUCH MONEY, BU LLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING: [PROVIDED THAT WHERE ANY BUILDING, PLACE, VESSEL, VEHICLE OR AIRCRAFT REFERRED TO IN CLAUSE (I) IS WITHIN THE ARE OF JURISDICTION OF ANY [ CHIE F COMMISSIONER OR COMMISSIONER], BUT SUCH [CHIEF COMMISSIONER OR COMMISSIONER] HAS NO JU RISDICTION 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 EX ERCISE THE POWERS UNDER THIS SUB- SECTION IN ALL CASES WHERE HE HAS REASON TO BELIEVE THAT ANY DELAY IN GETTING THE AUTHORISATION FOR THE [ CHIEF COMMISSIONER OR COMMI SSIONER] HAVING JURISDICTION OVER SUCH PERSON MAY BE PREJUDICIAL TO THE INTEREST OF T HE REVENUE:] [PROVIDED FURTHER THAT WHERE IT IS NOT POSSIBLE OR PRACTICAB LE TO TAKE PHYSICAL POSSESSION OF ANY VALUABLE ARTICLE OR THING AND REMOVE IT TO A SAFE PLACE DUE TO ITS VOLUME, WEIGHT OR OTHER PHYSICAL CHARACTERISTICS OR DUE TO ITS BEING OF A DANGEROUS NATURE, THE AUTHORISED 11 OFFICER MAY SERVE AN ORDER ON THE OWNER OR THE PERS ON WHO IS IN IMMEDIATE POSSESSION OR CONTROL ON THE OWNER OR THE PERSON WHO IS IN IMM EDIATE POSSESSION OR CONTROL THEREOF THAT HE SHALL NOT REMOVE PART WITH OR OTHERWISE DEA L WITH IT, EXCEPT WITH THE PREVIOUS PERMISSION OF SUCH AUTHORISED OFFICER AND SUCH ACTI ON OF THE AUTHORISED 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-TRADE OF THE BUSINESS:] [PROVIDED ALSO THAT NO AUTHORISATION SHALL BE ISSUED BY THE ADDITIONAL DIRECTOR OR ADDITIONAL COMMISSIONER OR JOINT DIRECTOR OR JOINT COMMISSIONER ON OR AFTER THE 1 ST DAY OF OCTOBER, 2009 UNLESS HE HAS BEEN EMPOWERED BY TH E BOARD TO DO SO.] 9. FROM THE ABOVE PROVISIONS, IT IS CLEAR THAT SECT ION 132 CONTEMPLATES EXISTENCE OF CERTAIN EVENTUALITIES IN THE EVENT OF EXISTENCE WHERE OF THE COMPETENT AUTHORITY SHOULD HAVE REASON TO BELIEVE T HE EXISTENCE OF THE CIRCUMSTANCES MENTIONED IN CLAUSE (A) TO (C) OF SUB -SECTION (1) OF SECTION 132 OF THE ACT AND IN THE EVENT, THE COMPETENT AUTH ORITY MENTIONED IN CLAUSE (A) & (B) OF SUB-SECTION(1) OF SECTION 132 O F THE ACT CAN AUTHORISE THE AUTHORITIES MENTIONED IN THESE TWO CLAUSES COND UCT THE SEARCH. THEREFORE, THE EXISTENCE OF REASON TO BELIEVE IN CO NSEQUENCE OF THE INFORMATION IN POSSESSION OF THE OFFICER ABOUT EXIS TENCE OF THE REASON TO BELIEVE IS NOT SATISFIED, THERE COULD POSSIBLY BE N O AUTHORIZATION, IRRESPECTIVE OF THE FACT THAT IT MAY HAVE BEEN MADE , AND INTURN, IF ANY SEARCH IS CONDUCTED IN PURSUANCE OF THE AUTHORIZATI ON ISSUED IN ABSENCE OF THE EVENTUALITIES MENTIONED IN CLAUSE (A) TO (C) OF SUB-SECTION (1) OF SECTION 132 OF THE ACT, THE SAID SEARCH UNDER SECTI ON 132 OF THE ACT 12 CANNOT BE SAID TO BE A VALID SEARCH. IN THE INSTAN T CASE, THERE WAS NO COMPLETE INFORMATION IN POSSESSION OF SP CBI ABOUT ANY BULLION, JEWELLERY, CASH OR ANY OTHER DOCUMENT, WHICH COULD REVEAL THAT THE ASSESSEE WAS IN POSSESSION OF UNDISCLOSED ASSETS OR INCRIMINATING DOCUMENTS. IT APPEARS THAT THE DEPARTMENT ACTED UP ON THE INFORMATION PROVIDED BY THE POLICE DEPARTMENT ON 29/03/2007 AND ON THE SAME DAY, THE WARRANT OF AUTHORISATION WAS ISSUED AND THE SEA RCH WAS CONDUCTED, BUT NOTHING IS BROUGHT ON RECORD TO SUBSTANTIATE TH AT ANY CASH WAS FOUND, ALTHOUGH, SEARCH WAS CONDUCTED ON THE INFORMATION T HAT UNDISCLOSED CASH BEING CARRIED OUT BY THE ASSESSEE. ON THE SIMILAR ISSUE, THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SMT. CHITRA DEVI SONI (2009) 313 ITR 174 (RAJ) HELD AS UNDER:- ..THAT THE REVENUE FAILED TO PRODUCE RECORDS CON TAINING RELEVANT MATERIAL INCLUDING INFORMATION IN THE POSS ESSION OF THE COMPETENT AUTHORITY, ON THE BASIS OF WHICH IT HAD E NTERTAINED THE REASON TO BELIEVE THE EXISTENCE OF ONE OR MORE OF THE EVENTUALITIES COVERED BY CLAUSES (A) TO (C) OF SECT ION 132(1). IN THE ABSENCE OF A LEGAL SEARCH, IN ACCORDANCE WITH T HE PROVISIONS OF SECTION 132 THE BLOCK PERIOD OR THE PREVIOUS Y EAR IN WHICH THE SEARCH WAS CONDUCTED COULD NOT BE SAID TO HAVE COME INTO EXISTENCE AND THEREFORE ANY ASSESSMENT ORDER BASED ON SUCH SEARCH COULD NOT STAND. THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT WHEN THE AUTHORIZATION TO CONDUCT THE SEARCH B ASED ON REASONS GERMANE TO SECTION 132(1) DID NOT EXIST THE SEARCH BECAME INVALID AND THAT THE ASSESSMENT ORDER BASED ON SUCH SEARCH COULD NOT STAND AND HAD RIGHTLY SET IS ASIDE . 13 SIMILARLY, THE HON'BLE SUPREME COURT IN THE CASE O F UNION OF INDIA VS. AJIT JAIN AND ANOTHER (2003) 260 ITR 80 HELD AS UNDER:- (III) INTIMATION SIMPLICITER BY THE CBI THAT MONE Y WAS FOUND IN THE POSSESSION OF THE RESPONDENT, WHICH ACCORDING T O THE CBI WAS UNDISCLOSED, WITHOUT SOMETHING MORE, DID NOT CO NSTITUTE INFORMATION WITHIN THE MEANING OF SECTION 132 OF THE INCOME- TAX ACT, 1961, ON THE BASIS OF WHICH A SEARCH WARRA NT COULD BE ISSUED, AND THE SEARCH CONDUCTED ON THE BASIS OF SU CH INFORMATION AND THE BLOCK ASSESSMENT MADE PURSUANT TO SUCH SEARCH WAS NOT VALID. 10. IN THE PRESENT CASE ALSO, THE SEARCH WAS CONDUC TED ONLY ON THE BASIS OF THE INFORMATION RECEIVED FROM S.P. C.B.I. THAT U NDISCLOSED CASH BEING CARRIED OUT BY THE ASSESSEE, BUT NO SUCH CASH OR AN Y OTHER INCRIMINATING DOCUMENTS, BOOKS OF ACCOUNTS, MONEY, BULLION, JEWEL LERY OR OTHER VALUABLE ARTICLE OR THING WERE FOUND IN THE POSSESS ION OF THE ASSESSEE. THEREFORE, THE AUTHORIZATION TO CONDUCT SEARCH BASE D ON REASON UNDER SECTION 132(1) OF THE ACT DID NOT EXIST AND THE SEA RCH BECAME INVALID. THEREFORE, THE ASSESSMENT ORDER BASED ON THE SAID S EARCH CANNOT STAND AND TO BE SET ASIDE. WE, THEREFORE, ARE OF THE VIE W THAT THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER ON THE BASIS OF INVALID SEARCH DESERVE TO BE SET ASIDE AND QUASHED. SINCE, THE AS SESSMENT ORDERS ARE DIRECTED TO BE QUASHED, THEREFORE, NO FINDING IS GI VEN ON OTHER ISSUES RAISED BY THE ASSESSEE OR THE DEPARTMENT. 14 11. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED AND THAT OF THE DEPARTMENT IS DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 23 RD SEPTEMBER, 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23 RD SEPTEMBER, 2013. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.