Appeal Details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 86746 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 1 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
13-02-2015
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
H
Next Hearing Date
10-02-2015
Assessment Year
2001-2002
Appeal Filed On
28-12-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: H : NEW DELHI BEFORE SHRI I.P. BANSAL , JUDICIAL MEMBER AND SHRI N.K. SAINI , ACCOUNTANT MEMBER ITA NO S . 6437 TO 6442/DEL / 2012 ASSESSMENT YEAR S : 2001 - 02 TO 2006 - 07 ASSTT. COMMISSIONER OF VS. SH. VIJAY KUMAR RAICHAND, INCOME TAX, CENTRAL CIRCLE - 13, 11 - A, DOLPHIN, SADASHIV PARK , NEW DELHI PILOT BUNDER ROAD, COLABA, MUMBAI - 400005 (PAN: AADPR7924F ) (APPELLANT) (RESPONDENT) AND ITA NOS. 102 TO 107 /DEL/201 3 ASSESSMENT YEARS: 2001 - 02 TO 2006 - 07 CAPT. VIJAY KUMAR RAICHAND, VS. ASSTT. COMMISSIONER OF 11 - A, DOLPHIN, SADASHIV PARK, INCOME TAX, CENTRAL CIRCLE - 13, PILOT , BUNDER ROAD, COLABA, NEW DELHI MUMBAI - 400005 (PAN:AADPR7924F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. AJAY WADHWA, ADV. REVENUE BY : SMT. ANURADHA MISHRA, CIT, DR DATE OF HEARI NG: 10.02.2015 DATE OF PRONOUNCEMENT: 13.02.2015 ORDER PER I.P. BANSAL, J.M. : 1. THESE ARE CROSS A PPEALS IN RESPECT OF ASSESSMENT YEARS 2001 - 02 TO 2006 - 07 AND TH EY ARE DIRECTED AGAINST SEPARATE ORDERS PASSED BY THE LEARNED CIT(A) DATED 30 TH OCTOBER, 2012 IN RESPECT OF EACH OF THE ASSESSMENT YEAR. 2 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 2. ALL THESE APPEALS RELATE TO SEARCH CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 28 TH FEBRUARY, 2007 AND IMPUGNED ASSESSMENTS ARE PASSED UNDER SECTION 153A OF THE INCOME - TAX ACT, 1961 (HEREINAFT ER REFERRED TO AS THE ACT ) . AS PER THE APPEALS FILED BEFORE LEARNED CIT(A), ONE OF THE GROUNDS RAISED BY THE ASSESSEE IS CHALLENGING THE VALIDITY OF THE ASSESSMENT ORDERS ON THE GROUND OF LIMITATION. SUCH GROUND RAISED BY THE ASSESSEE IN EACH OF HIS APPE ALS FILED BEFORE LEARNED CIT(A) IS AS UNDER: THAT THE ASSESSMENT MADE U/S 153A, R.W.S. 143(3), DATED 29.12.2009 IS BARRED BY LIMITATION AS THE SAME OUGHT TO HAVE BEEN FINALIZED ON OR BEFORE 31 ST DECEMBER, 2008. THE SEARCH U/S 132(1) HAVING BEEN CONCLUDED ON 28.02.2007, THE ASSESSMENT WAS REQUIRED TO BE MADE ON OR BEFORE 31 ST DECEMBER, 2008 IN VIEW OF THE 21 MONTHS LIMITATION PRESCRIBED IN ITEM (I) OF THE 2 ND PROVISO TO SECTION 153B( 1) OF THE ACT. 3. THE AFOREMENTIONED GROUND HAS BEEN DECIDE D BY THE LEARNED CIT(A) AGAINST THE ASSESSEE AND BEING AGGRIEVED, THE ASSES SEE HAS RAISED FOLLOWING GROUND BEFORE THE TRIBUNAL , APART FROM THE GROUNDS IN WHICH THE ADDITIONS SUSTAINED ON MERITS ARE ALSO CONTEST ED : THE LEARNED CIT(A) HAS ERRED IN FAILING TO APPRECIATE THE FACT THAT THE ASSESSMENT MADE U/S 153A, R.W.S. 143(3) DATED 29.12.2009 IS BARRED BY LIMITATION AS THE SAME OUGHT TO HAVE BEEN FINALIZED ON OR BEFORE 31 ST DECEMBER, 2008. THE SEARCH U/S 132(1) H AVING BEEN CONCLUDED ON 28.02.2007, THE ASSESSMENT WAS REQUIRED TO BE MADE ON OR BEFORE 31 ST DECEMBER, 2008 IN VIEW O F THE 21 MONTHS LIMITATION PRESCRIBED IN ITEM (I) OF THE 2 ND PROVISO TO SECTION 153B(1) OF THE ACT. THE AFOREMENTIONED GROUND IS COMMON IN ALL THE YEARS. 4. THE REVENUE IN ITS APPEALS HAS CONTESTED THE ADDITIONS WHICH HAVE BEEN SUSTAINED BY THE LEARNED CIT(A). 3 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 5. IN THIS MANNER, BOTH THE PARTIES HAVE FILED CROSS APPEALS WHICH WERE ARGUED TOGETHER BY THEM . THESE APPEALS WERE HEARD ONLY ON THE GROUND RELATING TO VALIDITY OR OTHERWISE OF THESE ASSESSMENTS ON THE GROUND OF LIMITATION AS THE SAME IS LEGAL GROUND AND IF IT IS FOUND THAT THE ASSESSMENTS ARE TIME BARRED THEN DE CIDING THE MERITS OF THE ADDITIONS WIL L NOT BE REQUIRED. THEREFORE, FOR THE SAKE OF BREVITY, OTHER GROUNDS TAKEN BY BOTH THE PARTIES ARE NOT REPRODUCED. 6. THE FACTS WHICH WOULD BE REQUIRED TO DISPOSE OF GROUND NO. 2, WHICH HAS ALREADY BEEN REPRODUCED, ARE AS UNDER: 6.1 THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM PENSION FROM INDIAN NAVY, REMUNERATION/CONSULTATION FEES FROM VARIOUS COMPANIES AND INCOME FROM INTEREST AND OTHER SOURCES. A SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT ON 28 TH FEBRUARY, 2007 I N SURESH NANDA GROUP OF CASES AND SUCH SEARCH ALSO INCLUDE RESIDENTIAL PREMISES OF THE ASSESSEE. A PUNCHNAMA DATED 1 ST MARCH, 2007 WAS DRAWN IN THE CASE OF THE ASSESSEE WHEREIN CASH AMOUNTING TO RS. 18 LACS AND SOME LOOSE PAPERS WERE SEIZED. JEWELLERY AND ORNAMENTS VALUED AT RS. 14,05,075/ - AND RS. 7,86,280/ - WERE FOUND, VALUED AND INVENTORIZ ED . JEWELLERY AND ORNAMENTS OF THE VALUE OF RS. 88,400/ - AND RS. 7,92,630/ - (I.E. RS. 2,77,430/ - + RS. 5,15,200/ - ) WERE FOUND FROM TWO BANK LOCKERS AND ALSO INVENTORIZED. LIST OF BANK PASSBOOKS, CREDIT/DEBIT CARDS AND CLUB MEMBERSHIP CARDS WE RE ALSO PREPARED. THE STATEMENT OF THE ASSESSEE WAS ALSO RECORDED AND ACCORDING TO DEPARTMENT, SEARCH WAS 4 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 RECOMMENCED ON 28 TH APRIL, 2007 WHICH STARTED A T 11.35 AM AND FINALLY CONCLUDED ON THE SAME DAY AT 5.50 PM. IT WAS MENTIONED IN THE PUNCHNAMA DATED 28.04.2007 THAT THE VALUABLES AS PER ANNEXURE - 3 WERE FOUND BUT NOT SEIZED. ACCORDING TO THE FINDINGS RECORDED BY LEARNED CIT(A) , WHICH ARE FROM EXAMINATION OF RECORDS THAT , ANNEXURE - 3 WAS THE LIST OF JEWELLERY AND ORNAMENTS FOUND IN THE RESIDENTS AND LOCKERS OF THE ASSESSEE AND HIS RELATIVES WHICH WERE FOUND ON THE ORIGINAL DATE OF SEARCH ON 28 TH FEBRUARY, 2007 AND THESE FINDINGS OF LEARNED CIT(A) RECORDED I N PARA 4.3 ARE NOT CHALLENGED BY THE REVENUE. ON 1 ST MARCH, 2007 ITSELF, A PROHIBITORY ORDER UNDER SECTION 132(3) OF THE ACT WAS ALSO PASSED RESTRAINING THE ASSESSEE NOT TO REMOVE , PART - WITH OR OTHERWISE DEAL WITH ARTICLES AS UNDER: ALL THE CONTENTS LYING IN THE LEFT HAND TOP CABIN OF THE WALL CUPBOARD IN THE BEDROOM OF SHRI VIJAY KR. RAICHAND AT FLAT NO. 11 - A, DOLPHIN TOWER, SADASHIV PARK, PILOT BHUDER ROAD, COLABA, MUMBAI - 05 6.2 ON 28 TH APRIL, 2007, SEARCH PARTY VISITED AGAIN TO THE PREMISES OF THE ASSESSEE AND FOLLOWING ORDER WAS PASSED: DURING THE COURSE OF SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME - TAX ACT, AT THE PREMISES OF VIJAY KR. RAICHAND M/S CLARIDGES SEZ PVT. LTD., 11 - A, DOLPHIN TOWER, SADASHIV PARK, PIOLOT BHUDER CO. - OP . HOUSING SOCIETY LTD., COLABA, DEFENCE STATION AREA, MUMBAI - 05 ON 28.02.2007, A RESTRAIN ORDER U/S 132(3) OF THE INCOME - TAX ACT, 1961 DATED 28.02.2007 WAS PASSED ON LEFT HAND TOP CABIN OF THE WALL C UPBOARD IN THE BED ROOM OF SHRI VIJAY KR. RAICHAND. THE SAME IS HEREBY REVOKED TODAY, I.E., 28.04.2007 WITH IMMEDIATE EFFECT. 7. ON ABOVE MENTIONED FACTS IT IS THE CASE OF THE ASSESSEE THAT AS PER PUNCHNAMA DRAWN ON 28 TH APRIL, 2007, NO SEIZURE WAS MADE. THUS, SEARCH STOOD 5 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 CONCLUDED ON 28 TH FEBRUARY, 2007 AND THEREFORE THE ASSESSMENT FOR ASSESSMENT YEARS 2001 - 02 TO 2006 - 07 WERE REQUIRED TO BE MADE ON OR BEFORE 31 ST DECEMBER, 2008 AS PER SECOND PROVISO TO SECTION 153B(1) OF THE ACT. IT IS THE CASE OF THE AS SESSEE THAT THE ASSESSMENTS IN THE PRESENT CASES HAVE BEEN CONCLUDED ON 29 TH DECEMBER, 2009 WHICH IS A PERIOD BEYOND 31 ST DECEMBER, 2008, T HEREFORE, THE ASSESSMENT PROCEEDINGS ARE BARRED BY LIMITATION AND ARE REQUIRED TO BE CANCELLED. FOR THIS PURPOSE, REL IANCE IS PLACED BY LEARNED AR ON THE FOLLOWING DECISIONS: 1) CIT VS. D.D. AXLES (P.) LTD. [2010) 323 ITR 558 (DELHI HC): IN THE SAID CASE, A SEARCH WAS CONDUCTED ON 29 TH AUGUST, 1996 WHICH WAS CONCLUDED ON 30 TH AUGUST, 1996. A PANCHNAMA WAS DRAWN ON 29 TH AUGUST, 1996 WHEN BOOKS OF ACCOUNT AND OTHER DOCUMENTS WERE SEIZED AND A RESTRAINT ORDER WAS ALSO PASSED IN RESPECT OF AN ALMIRAH WHICH WAS EXTENDED TILL 18 TH NOVEMBER, 1996 ON WHICH DATE LAST PANCHNAMA WAS DRAWN AND RESTRAINT PLACED ON ALMIRAH WAS VACATE D. ON THAT DATE, NOTHING FURTHER WAS SEIZED FROM ASSESSEE'S PREMISES . BLOCK ASSESSMENT ORDER WAS PASSED ON 28 TH NOVEMBER, 1997 . TRIBUNAL HELD THAT FOR ALL PRACTICAL PURPOSE S SEARCH WAS CONCLUDED ON 29/30 AUGUST, 1996 AND LAST AUTHORIZATION WAS EXECUTED ON 29 TH AUGUST, 1996. IT WAS HELD THAT ONE YEAR TIME - LIMIT FOR FRAMING BLOCK ASSESSMENT FROM END OF MONTH, I.E., 31 ST AUGUST, 1996, EXPIRED ON 31.08.1997 AN D AS ORDER WAS PASSED ON 28 - 11 - 1997 , THE SAME WAS BARRED BY LIMITATION. IT WAS HELD THAT THE TRIBUNAL WAS RIGHT IN ANNULLING THE ASSESSMENT. 6 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 2) CIT V. S.K. KATYAL [2009) 221 CTR 310 (DELHI HC): IN THE SAID CASE, SEARCH WAS CONDUCTED ON 17 TH NOVEMBER, 2000 AND ON THE PUNCHNAMA RECORDED ON 17 TH NOVEMBER, 2000 IT WAS MENTIONED THAT SEARCH HAS BEEN TEMPORARILY SUSPENDED AND IT WAS HELD THAT MERE MENTION IN PUNCHNAMA THAT SEARCH WAS TEMPORARILY SUSPENDED DOES NOT, IPSO FACTO, CONTINUE SEARCH AND IT WOULD HAVE TO BE SEEN AS A FACT AS TO WHETHER SEARCH CONTINUED OR HAD CONCLUDED. IT WAS ALSO HELD THAT PANCHNAMA MENTIONED IN EXPLANATION 2(A) TO SECTION 158B E IS A PANCHNAMA WHICH DOCUMENT CONCLUDE THE SEARCH AND IF A PANCHNAMA DOES NOT, FROM FACTS RECORDED THEREIN, REVEAL THAT A SEARCH WAS NOT AT ALL CARRIED OUT ON DAY TO WHICH IT RELATES, THEN IT WOULD N OT BE A PA NCHNAMA RELATING TO SEARCH AND CONSEQUENTLY, IT WOULD NOT BE A PANCHNAMA OF TYPE WHICH FINDS MENTION IN EXPLANATION 2(A) TO SECTION 158BE . IT WAS HELD THAT WHEN SEARCH AND SEIZURE TOOK PLACE ON 17 TH NOVEMBER, 2000 THEN SUBSEQUENT PUNCHNAMA PREPAR ED ON 3 RD JANUARY, 2001 WHEN NO SEARCH AND SEIZURE TOOK PLACE , WAS NOT RELEVANT FOR COMPUTING THE LIMITATION TO PASS THE ASSESSMENT ORDER WHICH WAS PASSED ON 30 TH JANUARY, 2003. IT WAS HELD THAT LIMITATION TO FRAME THE ASSESSMENT WOULD END ON 30 TH NOVEMBER , 2002 , BEING TWO YEARS FROM END OF MONTH IN WHICH SEARCH WAS CONCLUDED . 3 ) CLT V. DEEPAK AGGARWAL [2009] 221 CTR 307 (DELHI HC) - IN THE SAID CASE, A SEARCH WAS CONDUCTED AS PER WARRANT DATED 31 - 10 - 2000, ON WHICH DATE A , A PROHIBITORY ORDER UNDER SECTION 132(3) WAS PASSED IN RESPECT OF 7 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 INVENTORY OF STOCK WHICH CONTINUED TILL IT WAS REVOKED VI DE PANCHNAMA DATED 23 - 12 - 2000. IT WAS THE CONTENTION OF THE REVENUE THAT PERIOD OF LIMITATION SHOULD BE COUNTED FROM 31 - 12 - 2000 THE REFORE, BLOCK ASSESSMENT MADE ON 27 - 12 - 2002 WAS WELL WITHIN TIME . HOWEVER, TRIBUNAL HELD THAT REVOCATION ORDER DATED 23 - 12 - 2000 DID NOT AMOUNT TO EXECUTION OF SEARCH AS NO ASSET WAS SEIZED UNDER SAID ORDER AND WHAT HAPPENED WAS ONLY REVOCATION OF PROHIBITO RY ORDER PASSED EARLIER . THUS, IT WAS HELD BY THE TRIBUNAL THAT BLOCK ASSESSMENT - IN - QUESTION WAS BARRED BY LIMITATION . IT WAS OBSERVED BY THEIR LORDSHIPS OF THE HON BLE DELHI HIGH COURT THAT THERE WAS NO EXPLANATION FORTHCOMING FROM REVENUE AS TO WHAT HAD TRANSPIRED FROM 31 - 10 - 2000 TO 23 - 12 - 2000, SO AS TO ENABLE THE HIGH COURT TO TAKE DIFFE RENT VIEW FROM THAT OF TRIBUNAL. THUS, IT WAS TO BE CONCLUDED THAT IMPUGNED ORDER PASSED BY TRIBUNAL WAS CORRECT AND DESERVED TO BE UPHELD . 4 ) CIT V. T.S. CHANDRASHEKA R THROUGH LRS [2009] 221 CTR 385 (KAR. HC) IN THE SAID CASE, AS PER PANCHNAMA DRAWN ON 12 - 12 - 1995 , CASH WAS SEIZED AND IT WAS HELD THAT THE SAME WAS TO BE TREATED AS LAST PANCHNAMA FOR PURPOSE OF COMPUTING LIMITATION PERIOD AND PANCHNAMA A S DRAWN ON FURTHER SEARCH LATER - ON ON 19 - 1 - 1996, 7 - 2 - 1996 AND 12 - 2 - 1996, WHEN NO SEIZURE TOOK PLACE, COULD NOT BE TREATED AS LAST PANCHNAMA FOR COMPUTING PERIOD OF LIMITATION. 5 ) NANDLAL M. GANDHI V. ACIT [ 2008] 115 ITO 1 (MUM.) (TM)) - 118 TTJ 289 8 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 IN THE SAID CASE, A SEARCH AND SEIZURE ACTION UNDER SECTION 132 WAS CARRIED OUT AT PREMISES OF ASSESSEE ON 28 - 7 - 1997 WHICH CONTINUED TILL 29 - 7 - 1997 WHEN A PANCHNAMA WAS PREPARED IN WHICH IT WAS STATED THAT ONLY BOOKS OF ACCOUNT AND DOCUMENTS WERE SEIZED AND NO SEIZURE WAS MADE IN RESPECT OF JEWELLERY AND SHARE CERTIFICATES. HOWEVER, PROHIBITORY ORDER UNDER SECTION 132(3) WAS ISSUED IN RESPECT OF JEWELLERY AND SHARES WHICH IN RESPECT OF JEWELLERY WAS REVOKED ON 1 - 8 - 1997 AND IN RESPECT OF SHARE CERTI FICATES WAS REVOKED ON 8 - 9 - 1997. THEREAFTER, ANOTHER PANCHNAMA WAS PREPARED ON 8 - 9 - 1997 SIMPLY STATING THAT SEARCH WAS COMPLETED. THE ASSESSMENT UNDER SECTION 158BC WAS COMPLETED ON 30 - 9 - 1999. THE QUESTION RAISED BEFORE THE TRIBUNAL WAS THAT WHETHER SEARCH WAS COMPLETED ON 29 - 7 - 1997. IT WAS HELD BY THE TRIBUNAL THAT SEARCH WAS COMPLETED ON 29.07.1997 AND PERIOD OF LIMITATION WAS TO BE COUNTED FROM THAT DATE. IT WAS HELD THAT BLOCK ASSESSMENT ORDER PASSED ON 30.09.1999 WAS BEYOND LIMITATION. 8. REFERRING TO A FOREMENTIONED DECISIONS IT WAS SUBMITTED BY LEARNED AR THAT THOUGH ALL THE AFOREMENTIONED DECISIONS HAVE BEEN RENDERED IN THE CONTEXT OF OLD PROVISIONS OF BLOCK ASSESSMENT I.E. SECTION 158BE(I)(B) AND THE PROVISIONS APPLI ED IN THE PRESENT CASE IS 153B BUT THE LANGUAGE OF BOTH THESE PROVISIONS IS SIMILAR SO AS IT RELATE TO PRESCRIBING THE LIMITATION TO FRAME THE ASSESSMENT. REFERENCE WAS MADE TO THE PROVISIONS OF SECTION 158BE OF THE ACT. THE RELEVANT PORTION OF WHICH READ AS UNDER: 158BE . [(1) THE ORDER U NDER SECTION 158BC SHALL BE PASSED 9 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 (A) WITHIN ONE YEAR FROM THE END OF THE MONTH IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A , AS THE CASE MAY BE, WAS EXECUTED IN CASES WHERE A SEARCH IS INITIATED OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED AFTER THE 30TH DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY, 1997; (B) WITHIN TWO YEARS FROM THE END OF THE MONTH IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEA RCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A , AS THE CASE MAY BE, WAS EXECUTED IN CASES WHERE A SEARCH IS INITIATED OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED ON OR AFTER THE 1ST DAY OF JANUARY, 1997. 8.1 REFERENCE WAS ALSO MADE TO THE PROVISIONS OF SECTION 153B OF THE ACT. THE RELEV ANT PORTION OF WHICH READ AS UNDER: 153B. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 153, THE ASSESSING OFFICER SHALL MAKE AN ORDER OF ASSESSMENT OR REASSESSMENT, (A) IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE ( B ) OF [SUB - SECTION (1) OF] SECTION 153A, WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED; (B) IN RESPECT OF THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A, WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED : [ PROVIDED THAT .] [ PROVIDED FURTHER THAT IN THE CASE WHERE THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED DURING THE FINANCIAL YEAR COMMENCING [ON OR AFTER THE 1ST DAY OF APRIL, 2004 BUT BEFORE THE 1ST DAY OF APRIL, 2010], (I) THE PROVISIONS OF CLAUSE (A) OR CLAUSE (B) OF THIS SUB - SECTION SHALL HAVE EFFECT AS IF FOR THE WORDS 'TWO YEARS' THE WORDS 'TWEN TY - ONE MONTHS' HAD BEEN SUBSTITUTED; (II) THE PERIOD OF LIMITATION .. 10 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 8.2 IT WAS PLEADED BY LEARNED AR THAT LANGUAGE USED BY LEGISLATURE FOR COMPUTING THE LIMITATION PERIOD IS PARI MATERIA , IN BOTH THE ABOVE MENTIONED SECTIONS; THEREFORE, D ECISIONS RENDERED IN RESPECT OF THE PROVISIONS OF SECTION 158BE WOULD BE EQUALLY APPLICABLE TO THE PROVISIONS OF SECTION 153B OF THE ACT. THUS, IT WAS SUBMITTED BY LEARNED AR THAT LEARNED CIT(A) HAS COMMITTED AN ERROR IN NOT ACCEPTING THE SUBMISSIONS O F TH E ASSESSEE THAT THE IMPUGNED ASSESSMENTS ARE BARRED BY LIMITATION AND ON THIS GROU ND ALONE, THE ASSESSEE DESERVE RELIEF. 9. ON THE OTHER HAND, LEARNED DR SUBMITTED THAT THESE ARGUMENTS WERE RAISED BY THE ASSESSEE EVEN BEFORE THE LEARNED CIT(A) AND HE HAS REJECTED ALL THESE ARGUMENTS OF THE ASSESSEE. SHE SUB MITTED THAT IN THE PRESENT CASE , LAST PUNCHNAMA WAS EXECUTED ON 28 TH APRIL, 2007 WHEN THE SEARCH SHOULD BE CONSIDERED TO BE CONCLUDED AND IF THE LIMITATION IS COUNTED FROM THE SAID PUNCHNAMA THEN THE ASS ESSMENT FRAMED BY THE DEPARTMENT ON 29 TH DECEMBER, 2009 IS WELL WITHIN TIME. THEREFORE, SHE PLEADED THAT LEARNED CIT(A) DID NOT COMMIT ANY ERROR IN HOLDING THAT THE IMPUGNED ASSESSMENTS ARE COMPLETED WITHIN THE STATUTORY TIME. 10. WE HAVE HEARD BOTH THE PAR TIES AND THEIR CONTENTIONS HAVE CAREFULLY BEEN CONSIDERED. COPY OF FIRST PUNCHNAMA DATED 1 ST MARCH, 2007 PREPARED IN RESPECT OF WARRANT OF AUTHORIZATION DATED 27 TH FEBRUARY, 2007 IS ATTACHED IN THE PAPER BOOK AT PAGES 1 TO 9. THE DETAILS REGARDING THE SEIZ URES MADE ON 1 ST MARCH, 11 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 2007 IN CONCLUSION OF THE SAID WARRANT OF AUTHORIZATION VIDE PUNCHNAMA DATED 1 ST MARCH, 2007, ARE ALSO DESCRIBED IN THE EARLIER PARA OF THIS ORDER (PARA 6.1) . ON THE SAME DATE I.E. 1 ST MARCH, 2007, A PROHIBITORY ORDER WAS PASSED, CO PY OF WHICH IS PLACED AT PAGE 10 OF THE PAPER BOOK AND THE CONTENTS OF THE PROHIBITORY ORDER ARE ALS O REPRODUCED IN THE EARLIER PARA OF THIS ORDER (PARA 6.1) . COPIES OF SUBSEQUENT PUNCHNAMA PREPARED ON 28 TH APRIL, 2007 AND REVOCATION ORDER PASSED ON 28 TH A PRIL, 2007 ARE ALSO FILED AT PAGES 11 AND 12 OF THE PAPER BOOK. IT IS A MATTER OF FACT THAT, AS PER RECORD, ON THE SAID DATE EXCEPT FROM REVOKING THE PROHIBITORY ORDER NOTHING WAS SEIZED OR INVENTORIZED. THERE IS ALSO NOTHING ON RECORD TO SHOW THAT BETWEEN 1 ST MARCH, 2007 TO 28 TH APRIL, 2007 SOMETHING WAS DONE BY THE REVENUE IN RESPECT OF EARLIER AUTHORIZATION DATED 27 TH FEBRUARY, 2007. THEREFORE, FROM THE FACTS IT IS CLEAR THAT SUBSEQUENT TO CONCLUSION OF ORIGINAL PUNCHNAMA I.E. PUNCHNAMA PREPARED ON 1 ST M ARCH, 2007, NO FURTHER SEIZURE WAS MADE BY THE REVENUE AND ON 28 TH APRIL, 2007, ONLY PROHIBITORY ORDER , WHICH PASSED ON 1 ST MARCH, 2007 , WAS VACATED. ON THESE FACT S , IT IS THE CASE OF THE ASSESSEE THAT THE ASSESSMENT WAS REQUIRED TO BE MADE WITHIN A PERIOD OF 21 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORIZATIONS FOR SEARCH UNDER SECTION 132 OF THE ACT WAS EXECUTED AND IN THE PRESENT CASE, IF THE FIRST AUTHORIZATION FOR SEARCH IS CONSIDERED TO BE CONCLUDED ON 1 ST MARCH, 2007 TH EN THE ASSESSMEN T WOULD BE REQUIRED TO BE MADE WITHIN A PERIOD OF 21 MONTHS RECKONING FROM 1 ST APRIL, 2007 WHICH WILL END ON 31 ST 12 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 DECEMBER, 2008, WHEREAS THE ASSESSMENT IN THE PRESENT CASE FRAMED ON 29 TH DECEMBER, 2009 WHICH IS BARRED BY LIMITATION. FOR CO NTENDING SO, THE RELIANCE HAS BEEN PLACED ON THE DECISIONS RECORDED IN PARA 7 OF THIS ORDER. 11. WE HAVE CAREFULLY CONSIDERED SUCH SUBMISSIONS OF THE ASSESSEE. THE LANGUAGE OF PROVISIONS OF SECTIONS 158BE AND 153B OF THE ACT, SO AS IT RELATE TO COMPUTATION O F LIMITATION , IS SAME. WHAT IS CONSIDERED IN THE DECI SIONS RELIED UPON BY LEARNED AR IS THE EXECUTION OF THE AUTHORIZATIONS IN RESPECT OF A SEARCH WHICH IS RELEVANT TO DECIDE THE QUESTION REGARDING LIMITATION TO PASS THE ASSESSMENT ORDERS IN SUCH CASES. PR OCEDURES OF CONDUCTING SEARCH REMAIN SAME UNDER OLD PROVISIONS AS WELL AS UNDER NEW PROVISIONS . THE SEARCH IS CONDUCTED ON THE BASIS OF AUTHORIZATIONS ISSUED TO THE OFFICERS OF THE DEPARTMENTS. IN ALL THESE CASES, THE COURTS HAVE CONSIDERED THE AUTHORIZATI ONS ISSUED BY THE DEPARTMENTS TO ITS OFFICERS AND CONCLUSIONS OF SUCH AUTHORIZATIONS BY WAY OF PUNCHNAMA IN WHICH THE SEIZURES MADE DURING THE COURSE OF SEARCH ARE CONSIDERED ALONG WITH THE REQUISITIONS MADE UNDER SECTION 132A. A UNANIMOUS VIEW HAS BEEN TA KEN BY THE COURTS THAT THE AUTHORIZATIONS REFERRED TO IN THE PROVISIONS RELATING TO COMPUTATION OF LIMITATION IS TO BE CONSIDERED AS A CONCLUSION OF SEARCH ON THE DATES WHEN SEIZURES ARE MADE AND PRACTICALLY THE SEARCH IS CONCLUDED. IF THE AUTHORIZATION I S EXTENDED BY WAY OF PASSING PROHIBITORY ORDER THEN IT WOULD BE RELEVANT TO LOOK INTO THE ACTION OF THE DEPARTMENT TAKEN ON SUBSEQUENT DATES TILL THE PROHIBITORY ORDER PASSED ARE 13 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 REVOKED OR VACATED. IN VARIOUS CASES SUCH PROHIBITORY ORDERS ARE BEING PASSED BY THE REVENUE AND ACCORDING TO UNANIMOUS VIEW TAKEN BY THE COURT S MORE PARTICULARLY HON BLE JURISDICTI ONAL HIGH COURT , THAT IF ON THE DATE WHEN SUCH PROHIBITORY ORDERS ARE VACATED, IT WOULD BE REL EVANT TO SEE THE ACTION OF THE DEPARTMENT AND IF NO SEIZURE IS MADE ON THAT DATE AND NOTHING IS DONE EXCEPT LIFTING TH E PROHIBITORY ORDERS THEN THE LA ST PUNCHNAMA DRAWN ON THAT DATE WOULD NOT BE RELEVANT TO COMPUTE THE LIMITATION PERIOD FOR FRAMING THE ASS ESSMENT. THE DETAILS OF THESE CASES AND WHAT HAS BEEN HELD THEREIN HA S ALREADY BEEN MENTIONED IN PARA 7 OF THIS ORDER AND FOR THE SAKE OF BREVITY THE SAME IS NOT REPRODUCED AGAIN. LOOKING INTO THE FACTS OF THE CASE WHICH HA VE BEEN NARRATE D IN DETAIL IN THE EARLIER PART OF THIS ORDER, WE ARE OF THE OPINION THAT THE LEARNED CIT(A) HAS COMMITTED AN ERROR IN NOT ACCEPTING THE SUBMISSION OF THE ASSESSEE THAT THE COMPUTATION OF THE PERIOD OF LIMITATION SHOULD COMMENCE ON 1 ST MARCH, 2007 WHEN FOR ALL PRACTICAL PUR POSES THE AUTHORIZATION ISSUED BY THE DEPARTMENT FOR SEARCH IN THE CASE OF THE ASSESSEE WAS EXECUTED AND SUBSEQUENT PUNCHNAMA DRAWN ON 28 TH APRIL, 2007 COULD NOT BE CONSIDERED AS RELEVANT FOR COMPUTING THE PERIOD OF LIMITATION FOR FRAMING THE ASSESSMENT. T HEREFORE, WE REVERSE THE ORDER OF LEARNED CIT(A) ON THIS ISSUE AND IT IS HELD THAT THE ASSESSMENTS FRAMED BY THE ASSESSING OFFICER ON 29 TH DECEMBER, 2009 IN RESPECT OF ALL THE IMPUGNED ASSESSMENT YEARS ARE BEYOND THE PERIOD OF 21 MONTHS, THEREFORE, BARRED BY LIMITATION AND THUS ARE INVALID ASSESSMENTS. THE IMPUGNED ASSESSMENTS ARE 14 ITA NOS. 6437 TO 6442/DEL/2012 & 102 TO 107/DEL/2013 QUASHED. GROUND NO. 2 OF THE ASSESSEE S APPEAL S IN RESPECT OF ALL THE IMPUGNED ASSESSMENT YEARS ARE ALLOWED. 12. SINCE WE HAVE HELD THAT THE ASSESSMENTS IN THE PRESENT CASES ARE BE YOND PERIOD OF LIMITATION AND ARE INVALID , WE DO NOT CONSIDER IT NECESSARY TO GO INTO THE OTHER G R OUNDS OF APPEAL FILED BY THE ASSESSEE AS WELL AS BY THE REVENUE WHICH WILL BE ACADEMIC ONLY. 13. IN VIEW OF THE ABOVE DISCUSSIONS, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED ON THE GROUND OF LIMITATION BY ADJUDICATING GROUND NO. 2 AND THE APPEALS ARE CONSIDERED TO BE ALLOWED IN THE MANNER AFORESAID. THE APPEALS FILED BY THE REVENUE ARE DISMISSED HA VING BECOME ACADEMIC . 14. IN THE RESULT, THE APPEAL S OF THE ASSESSEE ARE ALLOWED IN THE AFORESAID TERM AND THE APPEALS OF THE REVENUE ARE DISMISSED. THE DECISION IS PRO NOUNCED IN THE OPEN COURT ON 13 TH FEBRUARY , 2015. SD/ - SD/ - ( N.K. SAINI ) ( I.P. BANSAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH FEBRUARY , 2015. RK/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI
Mehul