Income Tax Appellate Tribunal - Cuttack
Narshing Lal Agrawal, Sambalpur vs Dcit, Circle-1(1), Sambalpur, ... on 28 April, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL,
CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER
AND KULDIP SINGH JUDICIAL MEMBER
IT(SS)A No.94/CTK/2013: Asse ssment Year : 2008-2009
IT(SS) A No.120/CTK/2013: Assessment Year : 2007-08
Narasingh lal Agrawal, Vs. DCIT, Circle 1 (1),
Nayapara, Sambalpur Sambalpur
PAN/GIR No.AJDPA 7291 D
(Appellant) .. ( Respondent)
IT(ss) A No.92 /CTK/2013 : Assessment Year : 2006-07
IT(ss) A No.93 /CTK/2013 : Assessment Year : 2008-09
ACIT, Circle 1(1), Vs. Bimal Kumar Agarwal,
Sambalpur Nayapara, Sambalpur
PAN/GIR No. AEFPA 1776 G
(Appellant) .. ( Respondent)
IT(ss) A No.99 /CTK/2013 : Assessment Year : 2006-07
IT(ss) A No.110 /CTK /2013 : Assessment Year : 2007-08
IT(ss) A No.100 /CTK /2013 : Assessment Year : 2008-09
C.O. No.53/CTK/2013 (ari si ng out of ITA No.92/CTK/13)
C.O. No.54/CTK/2013 (ari si ng out of ITA No.93/CTK/13)
Bimal Kumar Agarwal, Vs. ACIT, Circle 1(1),
Nayapara, Sambalpur Sambalpur
PAN/GIR No. AEFPA 1776 G
(Appellant) .. ( Respondent)
2
IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009
IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08
IT(ss) A No.374 /CTK /2013 : Assessment Year : 2003-04
IT(ss) A No.91 /CTK/2013 : Assessment Year : 2008-09
ACIT, Circle 1(1), Vs. Unifood India Pvt Ltd.,,
Sambalpur Nayapara, Sambalpur
PAN/GIR No. AAACU 5420 D
(Appellant) .. ( Respondent)
IT(ss) A No.115 /CTK /2013 : Assessment Year : 2004-05
IT(ss) A No.116 /CTK /2013 : Assessment Year : 2006-07
IT(ss) A No.117 /CTK /2013 : Assessment Year : 2007-08
IT(ss) A No.95 /CTK/2013 : Assessment Year : 2008-09
C.O. No.55/CTK/2013 (ari si ng out of ITA No.374/CTK/13)
C.O. No.52/CTK/2013 (ari si ng out of ITA No.91/CTK/13)
Unifood India Pvt Ltd.,, Vs. ACIT, Circle 1(1),
Nayapara, Sambalpur Sambalpur
PAN/GIR No. . AAACU 5420 D
(Appellant) .. ( Respondent)
IT(SS)A No.98/CTK/2013: Asse ssment Year : 2008-2009
IT(SS) A No.104/CTK/2013: Assessment Year : 2003-2004
IT(SS)A No.105/CTK/2013: Assessment Year : 2004-2005
IT(SS)A No.106/CTK/2013: Assessment Year : 2005-2006
IT(SS)A No.107/CTK/2013: Assessment Year : 2006-2007
IT(SS)A No.108/CTK/2013: Assessment Year : 2007-2008
Kanta Devi Agrawal, C/O. Vs. DCIT, Circle 1 (1),
Narsigh Lal Agrawal, Sambalpur
Nayapara, Sambalpur
PAN/GIR No.ACFPA 1775 M
(Appellant) .. ( Respondent)
3
IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009
IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08
IT(SS)A No.96/CTK/2013: Asse ssment Year : 2008-2009
IT(SS) A No.112/CTK/2013: Assessment Year : 2006-2007
IT(SS)A No.113/CTK/2013: Assessment Year : 2007-2008
Shri Asis Agrawal, C/O. Sri Vs. DCIT, Circle 1 (1),
Narsingh Lal Agarwal, Sambalpur
Nayapara, Sambalpur
PAN/GIR No.ACFPA 1774 L
(Appellant) .. ( Respondent)
IT(SS)A No.101/CTK/2013: Assessment Year : 2008-2009
IT(SS) A No.102/CTK/2013: Assessment Year : 2007-08
Smt. Jinia Agrawal, C/O. Vs. DCIT, Circle 1 (1),
Narsigh Lal Agrawal, Sambalpur
Nayapara, Sambalpur
PAN/GIR No.AIDPA 0088 M
(Appellant) .. ( Respondent)
IT(ss) A No.119 /CTK /2013 : Assessment Year : 2005-06
Priti Automobiles Ltd., Vs. DCIT, Circle 1(1),
Nayapara, Sambalpur Sambalpur
PAN/GIR No. AACCP 5945 Q
(Appellant) .. ( Respondent)
IT(ss) A No.103 /CTK /2013 : Assessment Year : 2007-08
IT(ss) A No.97 /CTK/2013 : Assessment Year : 2008-09
Smt. Manisha Agrawal, Vs. DCIT, Circle 1(1),
C/O. Narsingh Lal Agrawal, Sambalpur
Nayapara, Sambalpur
PAN/GIR No.ABHPK 6451 G
(Appellant) .. ( Respondent)
4
IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009
IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08
Assessee by : Shri Prajna Raj Mohanty, AR
Revenue by : Shri Kunal Singh, CIT, DR
Date of Hearing : 26/04/ 2017
Date of Pronouncement : 28 /04/ 2017
ORDER
Per N.S.Saini, AM
These are appeals filed by the assessee's and the revenue against separate orders of the CIT(A). The assessee, Bimal Kumar Agarwal has also filed cross objections for the assessment year 2006-07 and 2008- 09 and the assessee Unifood India Pvt Ltd., has also filed cross objections for the assessment year 2003-04 and 2008-09.
2. At the outset, ld Authorised Representative of the assessee submitted that the facts and issue involved in all these batch of 31 appeals, which includes appeals filed by the revenue and the cross objections of the assessee are common and, therefore, he will be arguing the appeal of Shri Narsinghlal Agrawal and the same arguments may be considered in the case of other assessee's.
3. Ld Departmental Representative conceded the same.
4. Ld A.R. argued that the first legal issue involved in all these appeals is that the assessment order passed by the Assessing Officer in 5 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 all these appeals is barred by limitation as per provisions of section 153B of the Income tax Act, 1961, which provides that the assessment order u/s.153A is to be passed within 21 months from the end of the financial year in which the search was conducted.
5. Ld A.R. submitted that in the instant case, a search and seizure operation was conducted u/s.132 of the Act in the residence of the assessee on 20.2.2008. He submitted that the search commenced on 20.2.2008 at 7.45 AM and was temporarily concluded on 21.2.2008 at 3.20 PM. A panchanama was drawn on 21.2.2008, wherein, it was stated that the search was temporarily concluded and seals were placed on one room, iron chest and CPU against which prohibitory order u/s.132(3) was passed. Further, ld A.R. submitted that on 31.3.2008, the search again commenced at the residence of the assessee at 11 AM. In respect of aforesaid room, iron chest and CPU, covering under prohibitory order and temporarily concluded on the same day without mentioning of the time in the Panchanama. Another prohibitory order u/s.132(3) in respect of same CPU was passed. It was submitted that the issue of another prohibitory order u/s.132(3) on the same CPU on 31.3.2008 and lifting the said prohibitory order was on 26.5.2008 after the expiry of the validity of first prohibitory order dated 21.2.2008 on 21.4.2008 is invalid in law. The said prohibitory order was valid for 60 days till 21.4.2008 as per section 132 (8A) and the validity thereof could 6 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 not be ignored by service of another prohibitory order u/s.132(3) on 31.3.2008 and for this he relied on the following decision:
CIT v. Rajhans Aromatics (2011) 336 ITR 68 (Del). SLP dismissed by the Supreme Court vide (2011) 334 ITR (St.) 1;
ACIT v. White & White Mineral (P) Ltd. (2008) 114 TTJ 0405 (Jodhpur Trib.); Shahrukh Khan v. ACIT{2007) 104ITD 221 (Mum-Trib); D.T.S.Rao v. ACIT (2007) 106 ITD 570 (Bang.-
Trib.); CITv. D.DAxles (P) Ltd. 323 ITR 558 (Del.); Windson Electronics (P) Ltd. & Another v. Union of India & Others (2004) 269 ITR 481 (Cal); T.S.Chandrashekhar v. ACIT (2000) 66 TTJ 360 (Bang.-Trib.); Late Ananta N Naik, through LR v. DCIT (2000) 66 TTJ 533 (Pune-Trib.); CITv.
Sandhya PNaik (2000) 253 ITR 534 (Bom); C.Ramaiah Reddy v. ACIT (2011) 339 ITR 210 (Kar); ACIT v. Shree Ram Lime Products Ltd. (2012) 137 ITD 220 & ARakesh Kumar Jain v. JCIT (Madras High Court Judgment dated 25.9.2012 in Tax Case (Appeal) No.l240 of 2006."
6. Further, ld A.R. submitted that as per clause (a) of sub-section (1) of section 153B read with second proviso thereto, the assessment under section 153A(1)(b) for six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted have to be completed within a period of 21 months from the 7 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 end of the financial year in which the last of the authorisation for the search was executed. As per clause (b) thereof, the assessment u/s.143(3) for the assessment year relevant to the previous year in which search is conducted has also to be completed within the above mentioned period. It was submitted that the limitation for assessment u/s.153A expired on 31.12.2009 and, accordingly, if the search is held to have been completed on 31.3.2008 and accordingly the impugned assessment made on 29.12.2010 u/s.143(3)/153A is barred by limitation.
7. Ld A.R. of the assessee in support of his above argument relied on the decision of Hon'ble Karnataka High Court in the case of C.Ramaiah Reddy vs CIT, 244 CTR 126 (Kar) and submitted that the Hon'ble High Court has held as under:
"When once the search starts it can go on continuously day or night, rain or shine. There is no bar for the operation to continue on holidays. It is possible, in a given case, due to the volume of the place to be searched or on account of the volume of the articles to be seized, it may not be possible to complete the search within 24 hours. In which event, there is no prohibition to continue search beyond 24 hours and in such an event, the search would come to an end only after the search is completed, may be 48 hours or 72 hours, but the search should be continued without any interruption. The life of the authorisation starts with its issue and ends with its execution by the officials resulting in seizure of books, documents, money and so on. The search is to be carried out at one stretch and completed. The search comes to an end when the search party leaves the premises after carrying with them the seized material. As soon as the search party leaves the premises, the authorisation for search is fully implemented upon and execution is complete. Once the search commences and if it is adjourned for a later date, without completing the search on the adjourned date if the search recommences, it ceases to be a search in the context in which the said word is used in s. 132. The law recognizes a situation of deemed seizure and has provided a remedy to tackle such problems. The authorized officer has been given a discretion for the reasons to be recorded in 8 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 writing to pass a restraint order in respect of the articles, books and other material which he could not take physical possession of i.e. by making an inventory and leaving it to the custody of the assessee and directing him not to part with the same without his permission. Similarly, it is open for him to pass a prohibitory order under sub-s. (3) not amounting to seizure which order will be to force for a period of 60 days after securing the possession of the materials articles etc. in the aforesaid manner. Action under s. 132(3) of the IT Act can be resorted to only if there is any practical difficulty in seizing the item which is liable to be seized. It is open for the authorised officer to visit the place for the purpose of investigation securing further particulars. Under the scheme the law provides for such procedure. But not when he visits the premises for further investigation for the materials already secured. It does not amount to search as the material to be looked into and investigated is already known and is the subject-matter of a prohibitory order or a restraint order. Though it is not seizure or deemed seizure, it amounts to deemed possession. What is in your possession is to be looked into to find out is there any incriminating material. It does not amount to search as understood under s. 132. It is only because of paucity of time he has gone back and wants to come back and look into the matter leisurely. There is no provision in the Cr PC or in the IT Act or the rules for postponing the search for a long period. Then, the concept of search as understood either under the provisions of the Cr PC or the Act which are made applicable expressly, would lose its meaning. If such a course is attracted, it is open to an authorised officer to keep the authorisation in his pocket like a season ticket and go on visiting the premises according to his whims and fancies. It seriously affects the valuable right of the assessee conferred under the Constitution. In order that the restraint order must not be continued indefinitely, sub-s. (8A) of s. 132 provides that the restraint order can be continued only if before the expiry of 60 days, and for reasons to be recorded, the CIT grants an extension. The provisions of sub-s. (8A) cannot be by-passed or rendered nugatory by revoking an order under s. 132(3) and thereafter pass another order on the same date. In the nature of things, the search is to be done expeditiously and the undisclosed income is to be unearthed and proceeding has to be initiated against such person and the tax legitimately due to the Government is to be recovered. There cannot be any laxity on the part of the authorised officer in this regard. Any other interpretation would run counter to the scheme of search provision under the Act. Therefore, by passing a restraint order, the time-limit available for framing of the order cannot be extended. Once an order under s. 132(3) has been passed, then the limitation period commences and such order cannot be continued unless and until the provisions of s. 132(8A) are satisfied..
Once the authorised officer enters into the premises and conducts search, the search gets concluded when he comes out of the premises as evidenced by the Panchnama. In the course of the said search he may seize any books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of search. In the course of search if no incriminating material is found also, the search 9 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 comes to an end. Once the authorised officer comes out, the authorisation comes to an end. On the basis of the same authorisation he cannot enter the premises again for search. If he wants to search again he has to obtain another authorisation. However, in law he is entitled to enter the premises again, not for the purpose of search, but only for the purpose of inspection of the subject-matter of either the prohibitory order or the restraint order. When he enters the premises again, he has no jurisdiction to look into any other material except those materials which are the subject-matter of a prohibitory order or a restraint order. As he is not entering the premises again with the intention of making a search of the premises, the authorisation contemplated under s. 132(1) is not necessary. However, when he inspects the materials which are the subject-matter of these two orders it is done in furtherance of the search conducted when he entered the premises by virtue of the authorisation granted under s. 132(1). He can after such inspection seize any incriminating materials which disclose undisclosed income for the purpose of block assessment. Merely because one more Panchnama is drawn evidencing seizure of any material in the course of such inspection that cannot be construed as a last Panchnama referred to in Expln. 2 to s. 158BE. Therefore, it is clear once in pursuance of an authorization issued the search commences, it comes to an end with the drawing of a Panchnama. When the authorized officer enters the premises, normally, the Panchnama is written when he comes out of premises after completing the job entrusted to him. Even if after such search he visits the premises again for investigation or inspection of the subject-matter of restraint order or prohibitory order, if a Panchnama is written, that would not be the Panchnama which has to be looked into for the purpose of computing the period of limitation. But such a Panchnama would only record what transpires on a re-visit to the premises and the incriminating material seized would become part of the search conducted in pursuance of the authorisation and would become the subject-matter of block assessment proceedings. But, such a Panchnama would not extend the period of limitation. The limitation for completion of block assessment is expressly provided under s. 158BE which clearly declares that it is the execution of the last of authorisations which is to be taken into consideration. The word "seizure" is conspicuously missing in the said section. The same cannot be read into the section for the purpose of limitation. Then it amounts to rewriting the section by the Court, which is impermissible in law.
Explanation added to remove a doubt cannot be construed as a provision providing a longer period of limitation than the one prescribed in the main section. When under the scheme of the section there is no indication of second search on the basis of the same authorisation issued under the said provision, the legislative intention is clear and plain, and the interpretation to be placed by the Courts should be in harmony with such an intention. Therefore, one authorisation is to be issued in respect of one premises in pursuance of which there can be only one search and such a search is concluded, when the searching party comes out of the premises, which is evidenced by drawing up a Panchnama. When there are multiple places to search and when multiple authorisations are 10 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 issued on different dates or on the same date or in respect of the same premises more than one authorisation is issued on different dates, the last Panchnama drawn in proof of conclusion of search in respect of the authorisation, is to be taken into consideration for the purpose of limitation for block assessment."
8. He then relied on the decision of Hon'ble Madras High Court in the case of A. Rakesh Kumar Jain vs JCIT, 254 CTR 576 (Mad) and submitted that the Hon'ble High Court has held as under:
"There could be only one authorisation and a panchanama drawn as regards the conduct of the search, i.e., once when the search party concluded the search and leaves the premises after carrying with them the seized material, the authorisation for the search is fully implemented upon and execution completed. There afterwards , if the Department has to enter the premises again, as by way of search, certainly, one requires fresh authorisation ; however, no such authorisation is required to enter the premises to inspect the materials, which are the subject matter of prohibitory order or restraint order. The said order itself acts as an authorisation to enter the premises and inspect the materials, which are the subject matter of those orders. However, after entering the premises of such person, he has to confine his actions only for inspection of the subject-matter of prohibitory order or restraint order. He cannot search the premises over again. Any material seized after such inspection would be the undisclosed income for the purpose of the block assessment in pursuance of search under Section 132(1) of the Act. Thus, the panchanama evidencing such inspection and seizure would be the last panchanama in respect of the said premises. But for the purpose of limitation under Section 158BE, it would not be the last panchanama drawn in proof of conclusion of search, as defined in Explanation 2 to Section 158BE. For the purpose of limitation, there can be only one search and one panchnama.
9. He then relied on the decision of Hon'ble Karnataka High Court in the case of CIT vs. South India Paper Mills in ITA No.171 of 2008 order dated 2.9.2014 and submitted that the Hon'ble High Court followed the decision in the case of C.Ramaiah Reddy(supra), wherein, the Hon'ble Court has held as under:
"4. In view of the aforesaid judgment, in the instant case, there Was only one authorization dated 05.11.1996 in pursuance of which search 11 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 was conducted on 14.11.1996. Even if it is to be field that the search was continued on the two consecutive dates and it ended on 16.11.1996, the block assessment orders should have been passed on or before 30.11.1997. Whereas the block assessment order is passed on 29 01.1998 which is clearly barred by law of limitation. Therefore the block assessment order passed is liable to be set aside. In view of the fact that the block assessment order is held to be barred by limitation, question of going into merits of the said order does not arise."
10. He then relied on the decision of the Jodhpur Special Benches of the Tribunal in the case of ACIT vs. Shree Rem Lime Products Ltd., (2012) 147 TTJ 121 (SB)(Jodh), wherein, it has been held as under:
"26. The facts of the aforementioned case are almost resembling with the facts of the present case. The real question involved in the present appeal is that whether or not panchnama drawn on 3.1.1.2003 is relevant for the purpose of computing time limit described in section 158BE. As it has already been pointed out that the document known as panchnama by its nature is nothing but a document recording the proceedings which have happened in the presence of the witnesses. At the same time, the panchnama which is described in section 158BE should be a panchnama which reveal that a search was carried out on the day to which it relates. If it is found that the panchnama does not reveal that a search was at all carried out on the date to which it relates then it would not be a panchnama relating to a search and consequently it would not be a panchnama which finds mentioned in Explanation-2 to section 158BE. It is this proposition which has been upheld by Hon'ble jurisdictional High Court in the aforementioned case of CIT v. White & White Minerals Pvt. Ltd. (supra).
27. Therefore, to determine the real nature of panchnama drawn on 3.1.2003 it will be necessary to go into the facts recorded in the said panchnama. A copy of the said panchnama has been placed on record by both the parties and reference can be made to pages 38-40 of paper book filed by Ld AR of the assessee. It is observed from the said panchnama that Shri S.S. Mantri, DIT (Inv.I), Jodhpur is the authorized officer who was assisted by Shri PN Mathew, Inspector, Shri RL Rathi, Inspector and Shri Pawan Kumar, Staff car Driver. It started at 5.50 P.M. and it is in respect of authorization dated 17th December, 2002. It is mentioned that the search was in continuation of the proceedings on 21st December, 2002 and the search party had inspected the seal which were placed on 21st December, 2002 and it was found that the seals were intact as narrated in the order passed u/s 132(3) dated 3.1.2003. In the column relating to assets or documents seized, all the columns are filled as nil. No statement of any person was recorded on that date. It is mentioned that on 3.1.2003, the proceedings were started at 5.50 PM and the proceedings were closed on 3.1.2003 at 6.20 PM and all other columns are nil. The perusal of the panchnama will reveal that 12 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 except from passing the revocation order u/s 132(3) of the prohibitory order passed on 21st December, 2002 no other activity had taken place. Therefore, from the perusal of the panchnama it is clear that there was no conclusion of search. Whatever material was required to be seized or impounded was already seized/impounded by the Department. The proceedings on 3.1.2003 are only a formality completed within a very short span of time and was only to lift the prohibitory order. The same was the factual condition in the case of White & White Minerals Pvt. Ltd. (supra). The search itself in the present case was completed on 21st December, 2002. The details of proceedings happened on 03.01.2003 and already described in the details submitted by the Ld AR which have been reproduced above. The above conclusion is also supported by the decision of Hon'ble Delhi High Court in the case of CIT v. SK Katyal (supra) which was later on followed by Hon'ble Delhi High Court in the case of CIT v. D.D. Axles Pvt. Ltd. reported at 323 ITR 558 wherein a search was conducted at the premises of the assessee on 29th August, 1996 which was concluded on 30th August, 1996. A panchnama was drawn on 29th August, 1996 when books of accounts and other documents were seized and on the same day a restrain order was also passed with regard to an almirah that has been seized. The restrain order was extended till 18th November, 1996 on which date a panchnama was drawn and nothing was seized from the premises of the assessee. On 18th November, 1996 by an order, the restrain placed on the almirah was vacated. The assessment was passed on 28th November, 1997 and on these facts it was held that the search in itself was completed on 30th August, 1996 and till 18th November, 1996 when last panchnama was drawn and the restrain order was vacated, nothing else was found, and, in fact, no further search was conducted. Therefore, the last panchnama dated 18.11.1996 was merely a release order and could not extend the period of limitation.
28. The above proposition of law has also been laid down by the decision of Hon'ble Karnataka High Court in the case of C. Ramaiah Reddy (supra), upon which Ld. AR has placed reliance. While interpreting the word "Panchnama", their lordships in para 48 have observed that the "Panchnama" which is mentioned in Explanation 2 (a) to Section 158BE is a panchnama which authorize a conclusion of the search. Clearly, if a panchdnama does not, from the facts recorded therein, reveal that a search was carried out at all on the day which it relates, then, it would not be a panchnama relating to search and, consequently, it would not be a panchnama of the type which finds mention in Explanation 2 (a) to Section 158BE.
29. In view of above discussion, we hold that in the present case panchnama dated 3.1.2003 is not a panchnama which finds mentioned in Explanation 2 to section 158BE. Hence, the limitation cannot be governed by the said panchnama. The search essentially was concluded and completed vide panchnama dated 21st December, 2002, when order under the second proviso to section 132(1) was passed for deemed seizure of stock of goods of Rs. 25,43,500/-; statement of one person was recorded and a restrain order u/s 132 was passed. Panchnama 13 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 dated 21st December, 2002 was the last panchnama as described in Explanation 2 to section 158BE and, therefore, the limitation has to be commenced from the said panchnama. It is an undisputed position that if panchnama dated 21st December, 2002 is considered as last panchnama then the time limit to frame assessment u/s 158BC will be 31st December, 2004. As against that, the impugned assessment is passed on 31.1.2005 which is not passed within the limitation described in section 158BE. The assessment, therefore, is bad in law and has to be quashed."
11. Further, he relied on the decision of Hon'ble Calcutta High Court in the case of Windson Electronics (P) Ltd. & Anor vs Union of India, (2004) 192 CTR 542 (Cal) and submitted that the Hon'ble High Court has held as under:
"12. Firstly, I shall deal with prima facie whether fresh restraint order dt. 20th April, 2004, can be issued on the facts and circumstances of this case. Admittedly, the prohibitory order under s. 132(3) of the said Act dt. 20th April, 2004, has been issued afresh in relation to the same summons against the same persons. No new and further development took place. In my view, as rightly submitted by Mr. Chatterjee, this fresh order is not permissible under law in view of the insertion of sub-s. (8A) of the said s. 132. Previously, before the insertion by the Finance Act, 2002, there was a provision for extension beyond the period of 60 days. I have seen carefully the Finance Bill of 2002 [reported in (2002) 254 ITR (St) 153]. It appears to me, to obviate the difficulties then being faced by the affected person, a rigid time-limit of 60 days has been fixed and the earlier provision of extension has been deleted with the idea that whatever is required to be done to maintain the restraint order is to be completed within the period of 60 days in relation to one set of action. This has been done keeping in view that the Revenue officials taking advantage of the provision for extension used to prolong the investigation, search and seizure which resulted in undue harassment of the taxpayers.
13. I am unable to accept the submission of Addl. Solicitor-General that, in the absence of a contrary provision, it is open for the Revenue officials to pass order under s. 132(3) of the said Act afresh in relation to the same search and seizure action. In my opinion, if this argument is accepted then it amounts to unconditional and unguided extension of time in effect, which was not even permissible under the previous provisions and further the object of the legislature, if not practising "fraud" upon the statute. The fresh restraint order can be issued in relation to fresh and different action and not in relation to the same action previously taken. It is the settled position of law an individual body can act whatever he/she likes unless prohibited by the law, while 14 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 a statutory body and/or its official cannot act what is not expressly permitted by the law. The power of the statutory body cannot be inferred.
14. When the section itself provides that a restraint order in relation to one set of search and seizure action, will lose its force upon the expiry of 60 days, the same cannot be brought back to life in any manner whatsoever. The law never permits an action should be taken in a circuitous way, meaning thereby what cannot be possible directly, should not be allowed to be possible indirectly. Accordingly, I, prima facie, hold that the fresh restraint order in connection with this search and seizure action is ultra vires the provision of s. 132 and it is without jurisdiction. The decision of the Supreme Court rendered in the case of Special Director vs. Mohd. Ghulam Ghose (supra), is wholly misplaced here. The issue involved here does not relate to stalling search and seizure. The issue is whether action taken and order passed are within the limit of law or not. Here I am satisfied, prima facie, that the fresh order of attachment is absolutely want of authority.
12. He then relied on the decision of Hon'ble Orissa High Court in the case of Visa Comtrade Ltd vs Union of India & Ors, 338 ITR 343 (Ori), wherein, it has been held as under:
"Another glaring illegality committed by the IT Department is that prohibitory order under s. 132(3) has been issued without forming any reasonable belief that the money lying in the current account in question is wholly or partly representing undisclosed income of the petitioner. The admitted case of the Department is that before issuing the prohibitory order under s. 132(3) of the Act, no satisfaction has been recorded by the authorized officer that any concealed income is deposited in the current account in question. Such satisfaction according to the Department was recorded after issuance of the prohibitory order. A conjoint reading of sub-ss. (1) and (3) of s. 132 makes it clear that it is only when the nature or the location of the particular books of account, other documents, money, bullion, jewellery, or other valuable articles or thing found on a search, which are reasonably believed to be undisclosed property, does not allow or the circumstances of a given case do not permit immediate seizure of the same, the provisions of sub-s. (3) may be resorted to. In view of the above, prohibitory order issued under sub- s. (3) of s. 132 in respect of current account in question without forming any belief and/or without any material to conclude that the amount deposited in the said current account is either wholly or partly undisclosed income of the petitioner is unsustainable in law. The Revenue has not recorded any valid reason to come to a conclusion before issuance of prohibitory order dt. 11th Nov., 2010 and fresh authorization dt. 7th Jan., 2011 that any transaction in the bank account has not been passed through regular books of account and undisclosed income of the petitioner (wholly or partly) has been parked in the said 15 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 current account. On the other hand, the Department stated that investigation is going on to ascertain as to whether the money lying in the current bank account in question represents disclosed or undisclosed income. For the reasons stated above, issuance of the prohibitory order under s. 132(3) and the authorization dt. 7th Jan., 2011 and Panchanama dt. 8th Jan., 2011 are not valid.
13. Ld D.R. relied on the decision of Hon'ble Supreme Court in the case of VLS Finance Ltd vs CIT, (384 ITR 1) and submitted that the Hon'ble Supreme Court has held as under:
"As a general rule, therefore, when there is no stay of the assessment proceedings passed by the Court, Explanation 1 to Section 158BE of the Act may not be attracted. However, this general statement of legal principle has to be read subject to an exception in order to interpret it rationally and practically. In those cases where stay of some other nature is granted than the stay of the assessment proceedings but the effect of such stay is to prevent the assessing officer from effectively passing assessment order, even that kind of stay order may be treated as stay of the assessment proceedings because of the reason that such stay order becomes an obstacle for the assessing officer to pass an assessment order thereby preventing the assessing officer to proceed with the assessment proceedings and carry out appropriate assessment. For an example, if the court passes an order injuncting the assessing officer from summoning certain records either from the assessee or even from a third party and without those records it is not possible to proceed with the assessment proceedings and pass the assessment order, even such type of order may amount to staying the assessment proceedings."
14. Ld D.R. further argued and submitted that on 28.5.2008 a bunch of loose sheets containing computerised P&L account, balance sheet, trading account etc marked as NLS-1, one CD data written from computer marked as NLS-2 and computerised cash book for the period 1.4.2007 to 18.2.2008 marked as NLS-3 was seized as will be seen from the panchanama and, hence the search concluded on 28.5.2008 and, 16 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 therefore, the assessment order passed u/s.153A of the Act on 29.12.2010 is not barred by limitation.
15. In the rejoinder, ld A.R. submitted that the reliance placed by ld CIT DR on the decision of Hon'ble Supreme Court in the case of VLS Finance Ltd (supra) is not correct. He submitted that the Hon'ble Supreme Court in para 30 of the said order has held as under:
"As noticed above, the revenue authorities visited and searched the premises of the appellants for the first time on 22nd June, 1998. In the panchnama drawn on that date, it was remarked 'temporarily concluded', meaning thereby, according to the revenue authorities, search had not been concluded. For this reason, the respondent authorities visited many times on subsequent occasions and every time panchnama was drawn with the same remarks, i.e. 'temporarily concluded'. It is only on 5th August, 1998 when the premises were searched last, the panchnama drawn on that date recorded the remarks that the search was 'finally concluded'. Thus, according to the respondents, the search had finally been completed only on 5th August, 1998 and panchnama was duly drawn on the said date as well. The appellants, in the writ petition filed, had no where challenged the validity of searches on the subsequent dates raising a plea that the same was illegal in the absence of any fresh and valid authorisation. On the contrary, the appellants proceeded on the basis that search was conduced from 22nd June, 1998 and finally concluded on 5th August, 1998."
16. He submitted that in the case of the assessee, it is not so. The assessee has categorically challenged the validity of subseq1uent search and also the validity of subsequent prohibitory order passed u/s.132(3). Therefore, the decision of Hon'ble Supreme Court in the appeal against Writ Petition is not applicable to the facts of the assessee's case as the assessee in the case before the Hon'ble Supreme Court has not challenged the validity of search on the subsequent dates . 17
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17. Ld A.R. of the assessee further submitted that on 26th May 2008 the prohibitory order imposed on 31st March 2008 was revoked and another Panchanama was drawn up and as per para 5 of the Panchanama books of accounts and documents as per Annexure 'A' i.e., NLS-1, NLS-2 & NLS-3 was seized and at Para 8 of the Panchanama it is stated that the search is finally concluded.
18. As a matter of fact the books of account found & seized as per Panchanama dated 26th May 2008 is NLS-1, NLS-2 & NLS-3 and out of which NLS-3 happens to be the Cash Book for the F/Y 2007-2008 relevant to A/Y 2008-2009 basing upon which the Ld. Assessing Authority vide questionnaire dated 15th October 2010 in question No. 1 (Page 28 of the Paper Book) ask the assessee to explain the negative cash balance of Rs.2,46,48,320.78 surprisingly the same question was asked to the assessee while recording the statement U/s. 132(4) on dated 31st March 2008 as found from the statement recorded U/s. 132(4) at question No. 5 .
19. That, thus the contains of the seized document NLS-3 was known to the department as on 31st March 2008 which was seized on 26th May 2008. Therefore, as there exist no difficulty whatsoever for inspection & seizure of any money, bullion or article which could not have been seized the invocation of section 132(3) and imposition of prohibiting orders dated 21st February, 2008 and 31st March, 2008 is without the authority or sanction of Law or 18 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 without the condition president/stipulated for invocation of section 132(3) is not legally sustainable.
20. He submitted that in all these assessment orders there is no addition on the basis of any seized documents or material except only on the basis of seized document NLS-3 seized on 26th May, 2008 basing upon which question was asked to the assessee on 31st March, 2008 enforcing a disclosure which has been subsequently retracted vide an affidavit and not offered for taxation and any other addition in the assessment order is not on the basis of any incrementing document found during search but on the basis of explanations clarifications or documents submitted during the course of assessment.
21. We have heard the rival submissions, perused the records of the case and materials available on record. The undisputed facts of the case are that a search and seizure operation was conducted in the case of all the 8 assessee's involved in this batch of appeals u/s.132 of the Act. The Panchanama drawn in the above cases shows that the aforesaid search was conducted in pursuance to search warrant which was dated 19.2.2008. In pursuance to the said search warrant the Authorised Officer entered the premises of the assessee on 20.2.2008 and after conducting the search and seizing documents and materials, they have drawn panchanama in each case and left the premises on 21.2.2008. Before leaving, the Authorised Officer passed a prohibitory order in case of each of the 8 assesses in respect of one room, iron chest and CPU. 19
IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 In the Panchanama, it was stated that the search is temporarily concluded. Thereafter, the Authorised Officer visited the premises of the assessee on 31.3.2008 and revoked the earlier prohibitory order passed u/s.132(3) on 21.2.2008. The Authorised Officer has drawn one Panchanama on 31.3.2008. On that date, after revocation of earlier prohibitory order, the Authorities Officer passed a fresh prohibitory order dated 31.3.2008 purportedly u/s.132(3) of the Act in respect of one CPU. In the panchanama dated 31.3.2008 again it was stated that the search was temporarily concluded. Thereafter, the Authorised Officer once again visited the assessee's premises on 26.5.2008. On that date, the prohibitory order dated 31.3.2008 was revoked and a panchanama was also drawn. This panchanama dated 26.5.2008 records the search as finally concluded and also records seizure of certain documents on that date. Pursuance to the above search order of assessment u/s.153A r.w.s. 143(3) of the Act was passed by the Assessing Officer on 29.12.2010.
22. On the above facts, the main issue which requires our adjudication is whether the said order of assessment dated 29.12.2010 is barred by limitation as provided under section 153B of the Act or not.
23. Further one more incidental issue which arose was whether prohibitory order passed u/s.132(3) on 31.3.2008 was legally valid and the panchanama dated 26.5.2008 was legally valid panchanama or not. 20
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24. Ld D,R. relied on the order of the Hon'ble Supreme Court in the case of of VLS Finance Ltd (supra) in respect of above stated issues. Ld D.R. further drawn our attention to para 30 of the aforesaid order of Hon'ble Supreme Court, which reads as under:
"As noticed above, the revenue authorities visited and searched the premises of the appellants for the first time on 22nd June, 1998. In the panchnama drawn on that date, it was remarked 'temporarily concluded', meaning thereby, according to the revenue authorities, search had not been concluded. For this reason, the respondent authorities visited many times on subsequent occasions and every time panchnama was drawn with the same remarks, i.e. 'temporarily concluded'. It is only on 5th August, 1998 when the premises were searched last, the panchnama drawn on that date recorded the remarks that the search was 'finally concluded'. Thus, according to the respondents, the search had finally been completed only on 5th August, 1998 and panchnama was duly drawn on the said date as well. The appellants, in the writ petition filed, had no where challenged the validity of searches on the subsequent dates raising a plea that the same was illegal in the absence of any fresh and valid authorisation. On the contrary, the appellants proceeded on the basis that search was conducted from 22nd June, 1998 and finally concluded on 5th August, 1998."
25. A bare perusal of the above quoted decision of Hon'ble Supreme Court shows that in that case the assessee was in an appeal arising out of a Writ Petition. Further, the Hon'ble Supreme Court has categorically stated that as the appellant has not in its writ petition challenged the validity of search on the subsequent dates raising a plea that the same was illegal in the absence of any fresh and valid authorization. The Hon'ble Supreme Court in the decision itself reiterated that the decision was rendered by it in absence of any challenge laid by the appellant to the subsequent searches. Thus, we find that the Hon'ble Supreme Court 21 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 has rendered the decision in the said case on the peculiar facts of that case wherein the appellant who was a writ petitioner has not disputed the validity of the subsequent search on the ground of absence of fresh authorization.
26. In contradiction to the said, in the instant case before us, the appellant-assessee has categorically challenged the validity of subsequent search and also the validity of subsequent prohibitory orders passed u/s.132(3) of the Act on 31.3.2008 as well as the validity of panchanama dated 26.5.2008, which was beyond 60 days from 21.2.2008.
27. Thus, we find that the facts and circumstances of the instant case is distinguishable from the facts which were before the Hon'ble Supreme Court in the aforesaid case and consequently the said decision is not squarely applicable to the instant case.
28. `We find the Hon'ble Calcutta High Court in the case of Windson Electronics (P) Ltd. & Anor vs Union of India, (2004) 192 CTR 542 (Cal) has held as under:
"Admittedly, the prohibitory order under s. 132(3) dt. 20th April, 2004, has been issued afresh in relation to the same summons against the same persons. No new and further development took place. As rightly submitted by the counsel this fresh order is not permissible under law in view of the insertion of sub-s. (8A) in s. 132. Previously, before the insertion of sub-s. (8A) by the Finance Act, 2002, there was a provision for extension beyond the period of 60 days. It appears, to obviate the difficulties then being faced by the affected person, a rigid time-limit of 22 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 60 days has been fixed and the earlier provision of extension has been deleted with the idea that whatever is required to be done to maintain the restraint order is to be completed within the period of 60 days in relation to one set of action. The submission that in the absence of a contrary provision it is open for the Revenue officials to pass order under s. 132(3) afresh in relation to the same search and seizure action cannot be accepted. If this argument is accepted then it amounts to unconditional and unguided extension of time in effect, which was not even permissible under the previous provisions and further the object of the legislature, is not practising "fraud" upon the statute. The fresh restraint order can be issued in relation to fresh and different action and not in relation to the same action previously taken. It is the settled position of law that an individual body can act whatever he/she likes unless prohibited by the law, while a statutory body and/or its official cannot act what is not expressly permitted by the law. The power of the statutory body cannot be inferred. When the section itself provides that a restraint order in relation to one set of search and seizure action will lose its force upon the expiry of 60 days the same cannot be brought back to life in any manner whatsoever. The law never permits an action should be taken in a circuitous way, meaning thereby what cannot be possible directly, should not be allowed to be possible indirectly. Accordingly, the fresh restraint order in connection with this search and seizure action is ultra vires the provision of s. 132 and it is without jurisdiction."
29. In the instant case, we find that in pursuance to authorization for search dated 19.2.2008 a search was conducted in the premises of the assessee on 20.2.2008 and 21.2.2008. In the course of said search, a prohibitory order u/s.132(3) was passed on 21.2.2008 in respect of a CPU amongst others. As per provisions of section 132(8A), such a prohibitory order cannot remain in force after a period 60 days from 21.2.2008.
30. As per revenue, in pursuance to the execution of the very same authorization of search, a fresh prohibitory order u/s.132(3) was passed on 31.3.2008 in respect of very same CPU in respect of which the prohibitory order u/s.132(3) was already passed on 21.2.2008. 23
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31. In our considered opinion, in view of the aforesaid decision of Hon'ble Calcutta High Court in the case of Windson Electronics (P) Ltd. & Anor vs Union of India,(supra) the prohibitory order passed u/s.132(3) on 31.3.2008 is thus bad in law and invalid.
32. Further, in view of provisions of section 132(8A) of the Act, the prohibitory order dated 21.2.2008 automatically cease to exist on expiry of 60 days from 21.2.2008. Consequently, no valid prohibitory order existed on 26.5.2008 which could have been revoked under law on that date by the Authorised Officer.
33. As a result, the panchanama drawn on 26.5.2008 purportedly to revoke the prohibitory order passed u/s.132(3) either on 21.2.2008 or 31.3.2008 is invalid.
34. Further, we find the Hon'ble Karnataka High Court in the case of C.Ramaiah Reddy vs CIT, 244 CTR 126 (Kar) has held as under:
"When once the search starts it can go on continuously day or night, rain or shine. There is no bar for the operation to continue on holidays. It is possible, in a given case, due to the volume of the place to be searched or on account of the volume of the articles to be seized, it may not be possible to complete the search within 24 hours. In which event, there is no prohibition to continue search beyond 24 hours and in such an event, the search would come to an end only after the search is completed, may be 48 hours or 72 hours, but the search should be continued without any interruption. The life of the authorisation starts with its issue and ends with its execution by the officials resulting in seizure of books, documents, money and so on. The search is to be carried out at one stretch and completed. The search comes to an end when the search party leaves the premises after carrying with them the seized material. As soon as the search party leaves the premises, the authorisation for search is fully implemented upon and execution is complete. Once the search commences and if it is adjourned for a later date, without completing the search on the adjourned date if the search recommences, it ceases to be a search in the context in which the said 24 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 word is used in s. 132. The law recognizes a situation of deemed seizure and has provided a remedy to tackle such problems. The authorized officer has been given a discretion for the reasons to be recorded in writing to pass a restraint order in respect of the articles, books and other material which he could not take physical possession of i.e. by making an inventory and leaving it to the custody of the assessee and directing him not to part with the same without his permission. Similarly, it is open for him to pass a prohibitory order under sub-s. (3) not amounting to seizure which order will be to force for a period of 60 days after securing the possession of the materials articles etc. in the aforesaid manner. Action under s. 132(3) of the IT Act can be resorted to only if there is any practical difficulty in seizing the item which is liable to be seized. It is open for the authorised officer to visit the place for the purpose of investigation securing further particulars. Under the scheme the law provides for such procedure. But not when he visits the premises for further investigation for the materials already secured. It does not amount to search as the material to be looked into and investigated is already known and is the subject-matter of a prohibitory order or a restraint order. Though it is not seizure or deemed seizure, it amounts to deemed possession. What is in your possession is to be looked into to find out is there any incriminating material. It does not amount to search as understood under s. 132. It is only because of paucity of time he has gone back and wants to come back and look into the matter leisurely. There is no provision in the Cr PC or in the IT Act or the rules for postponing the search for a long period. Then, the concept of search as understood either under the provisions of the Cr PC or the Act which are made applicable expressly, would lose its meaning. If such a course is attracted, it is open to an authorised officer to keep the authorisation in his pocket like a season ticket and go on visiting the premises according to his whims and fancies. It seriously affects the valuable right of the assessee conferred under the Constitution. In order that the restraint order must not be continued indefinitely, sub-s. (8A) of s. 132 provides that the restraint order can be continued only if before the expiry of 60 days, and for reasons to be recorded, the CIT grants an extension. The provisions of sub-s. (8A) cannot be by-passed or rendered nugatory by revoking an order under s. 132(3) and thereafter pass another order on the same date. In the nature of things, the search is to be done expeditiously and the undisclosed income is to be unearthed and proceeding has to be initiated against such person and the tax legitimately due to the Government is to be recovered. There cannot be any laxity on the part of the authorised officer in this regard. Any other interpretation would run counter to the scheme of search provision under the Act. Therefore, by passing a restraint order, the time-limit available for framing of the order cannot be extended. Once an order under s. 132(3) has been passed, then the limitation period commences and such order cannot be continued unless and until the provisions of s. 132(8A) are satisfied.
Once the authorised officer enters into the premises and conducts search, the search gets concluded when he comes out of the premises as evidenced by the Panchnama. In the course of the said search he may 25 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 seize any books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of search. In the course of search if no incriminating material is found also, the search comes to an end. Once the authorised officer comes out, the authorisation comes to an end. On the basis of the same authorisation he cannot enter the premises again for search. If he wants to search again he has to obtain another authorisation. However, in law he is entitled to enter the premises again, not for the purpose of search, but only for the purpose of inspection of the subject-matter of either the prohibitory order or the restraint order. When he enters the premises again, he has no jurisdiction to look into any other material except those materials which are the subject-matter of a prohibitory order or a restraint order. As he is not entering the premises again with the intention of making a search of the premises, the authorisation contemplated under s. 132(1) is not necessary. However, when he inspects the materials which are the subject-matter of these two orders it is done in furtherance of the search conducted when he entered the premises by virtue of the authorisation granted under s. 132(1). He can after such inspection seize any incriminating materials which disclose undisclosed income for the purpose of block assessment. Merely because one more Panchnama is drawn evidencing seizure of any material in the course of such inspection that cannot be construed as a last Panchnama referred to in Expln. 2 to s. 158BE. Therefore, it is clear once in pursuance of an authorization issued the search commences, it comes to an end with the drawing of a Panchnama. When the authorized officer enters the premises, normally, the Panchnama is written when he comes out of premises after completing the job entrusted to him. Even if after such search he visits the premises again for investigation or inspection of the subject-matter of restraint order or prohibitory order, if a Panchnama is written, that would not be the Panchnama which has to be looked into for the purpose of computing the period of limitation. But such a Panchnama would only record what transpires on a re-visit to the premises and the incriminating material seized would become part of the search conducted in pursuance of the authorisation and would become the subject-matter of block assessment proceedings. But, such a Panchnama would not extend the period of limitation. The limitation for completion of block assessment is expressly provided under s. 158BE which clearly declares that it is the execution of the last of authorisations which is to be taken into consideration. The word "seizure" is conspicuously missing in the said section. The same cannot be read into the section for the purpose of limitation. Then it amounts to rewriting the section by the Court, which is impermissible in law.
Explanation added to remove a doubt cannot be construed as a provision providing a longer period of limitation than the one prescribed in the main section. When under the scheme of the section there is no indication of second search on the basis of the same authorisation issued under the said provision, the legislative intention is clear and plain, and the interpretation to be placed by the Courts should be in harmony with such an intention. Therefore, one authorisation is to be issued in respect of one premises in pursuance of which there can be only one search and 26 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 such a search is concluded, when the searching party comes out of the premises, which is evidenced by drawing up a Panchnama. When there are multiple places to search and when multiple authorisations are issued on different dates or on the same date or in respect of the same premises more than one authorisation is issued on different dates, the last Panchnama drawn in proof of conclusion of search in respect of the authorisation, is to be taken into consideration for the purpose of limitation for block assessment."
35. Respectfully following the above quoted decision of Hon'ble Karnataka High Court, we hold the search in the instant case in pursuance to authorisation for search dated 19.2.2008 was executed on 20.2.2008 and concluded on 21.2.2008 when the search officials left the premsies of the assessee after seizing whatever they wanted to seize and after passing prohibitory order in respect of materials where it was not practicable to seize the same on that date. After that the visit by the authorised officer on 31.3.2008 and on 26.5.2008 was not to conduct any search in pursuance to any fresh authorisation of search but was to investigate, revoke prohibitory order and a look into the materials which were placed under prohibitory order. No valid search in pursuance to any valid authorisation of search was conducted on 31.3.2008 or 26.5.2008. The proceedings was thus conducted on 31.3.2008 and/or on 26.5.2008 by the Authorised Officer will not extend the limitation prescribed u/s.153B(1) of the Act. Admittedly, in the instant case, only one authorisation for search was issued which was dated 19.2.2008 . Consequently in our considered view, the time limit of completion of assessment u/s.153A in the instant case expired on 31.12.2009 on completion of 21 months from the end of the financial 27 IT(SS)A No.94/CT K/2013: Asse ssment Year : 20 08-2009 IT(SS) A No.120/CTK/2013: Assess ment Year : 2007 -08 year in which the last of the authorisation for search u/s.132(2) was executed.
36. Similarly, the time limit for completion of assessment in respect of assessment year 2008-09 also expired on 31.12.2009 in view of the provisions of section 153B(1)(b) of the Act..
37. We find that in the instant case, the order of assessment u/s.153A for assessment years 2003-04 to 2007-08 and for assessment year 2008-09 which were passed on 29.12.2010 being after 31.12.2009 are barred by limitation and, accordingly, we set aside the same. Thus, the grounds of appeal of the assessees in all the above batch of 23 appeals are allowed.
38. In view of our decision the other grounds raised by the assessee have become infrtuctuous and only academic in nature and, therefore, those grounds of appeal are not adjudicated upon.
39. In view of our above decision in respect of the legal ground taken by the assessee in its appeals, the four appeals filed by the revenue are dismissed.
40. The four cross objections filed by the assessees are in supported of the orders of the CIT(A) and there being no grievance against the order of the CIT(A), the cross objections filed by the assessee are rendered infructuous and, accordingly dismissed. 28
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41. In the result, appeals filed by the assessees are allowed and the appeals filed by the revenue are dismissed. The cross objections filed by the assessee are also dismissed.
Order pronounced in the open court on 28 /04/2017
Sd/- sd/-
(Kuldip Singh) (N.S Saini)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Cuttack; Dated 28 /04/2017
B.K.Parida, SPS
Copy of the Order forwarded to :
1. Narasinghlal Agrawal, Nayapara, Sambalpur
2. The Respondent. DCIT, Circle 1(1),
Sambalpur
3. The CIT(A) Cuttack
4. Pr.CIT, Sambalpur
5. DR, ITAT, Cuttack
6. Guard file.
//True Copy// BY ORDER,
SR.PRIVATE SECRETARY
ITAT, Cuttack