Wednesday, 30 April 2014

Whether, for purpose of block assessment, it is necessary that name of assessee must figure in warrant of authorisation u/s 132 - YES: HC

THE issues before the Bench are - Whether Search as per the provisions of Sec 132 is always person-specific and not premise-specific; Whether, for the purpose of block assessment, it is necessary that the name of the assessee must figure in the warrant of authorisation u/s 132 and Whether mere presence of the assessee's name in the panchnama enables the Revenue to initiate block assessment. And the verdict goes against the assessee.
Facts of the case
The assessee is a lady. Her husband's premises were searched pursuant to a search warrant. During the course of search of the husband's residential premises certain documents were seized. A panchanama was drawn on 24th February, 2006, which revealed the locker keys pertaining to three lockers which were in joint names of S.K. Mohile and Ashish S. Mohile and the assessee. The lockers were at Bank of Baroda. On 23rd February, 1996 a warrant of authorization was issued in the name of the Branch manager, Bank of Baroda to search the lockers. The argument advanced was that, in the facts and circumstances of the case and in law, AO had no jurisdiction to pass an assessment order in the present case u/s 143(3) read with Section 158BC as no search warrant was served on the assessee.
While dealing with this additional ground raised in the appeal, the Tribunal found that search u/s 132 was a condition precedent for passing an order u/s 158BC and there being no search in the case of said Pamela, the orders u/s 158BC were nonest in law. The Bench of the Tribunal, with a view to verify the existence of authorization in the name of the assessee, directed the DR to appear before it to produce the warrant of authorization in the name of the assessee and for that purpose as many as eight adjournments were given. Despite this time being granted to the DR, he was unable to produce the warrant of authorization in the name of the assessee. It was argued that there was a massive restructuring of the department on 1st August, 2001. The Tribunal had clarified that, in the event the most relevant document pertaining to the appeal before the Tribunal was not produced, adverse inference will be drawn against the department. The request was that no such adverse inference be drawn because of the restructuring of the department.
On appeal before HC, a similar order was passed by the Division Bench that in order to enable the counsel for the appellant revenue to produce search warrant Nos.12406 and 12420 as mentioned in paragraph 9 of the impugned judgment dated 8th October, 2009 of the Income Tax Appellate Tribunal, stand over to 24th April, 2013. To be heard along with ITA No.2795 of 2009. In pursuance of that order, DR had produced a copy of the letter dated 28th November, 1996 from the office of the Additional Director of Income Tax (Investigation). The said letter indicated that the warrant of authorization was issued and search warrant No.12406 was issued in the name of the Branch Manager. In the case of search warrant No.12420 as well it was issued in the name of the Branch Manager of the Bank of Baroda.
Held that,
++ it is in these circumstances and the factual back ground that the Income Tax Appellate Tribunal arrived at a conclusion that the assessee before it, namely, Pamela Ashish Mohile was not searched. No warrant evidencing said search was produced. Therefore, mere presence of her name in the panchnama would not enable the Revenue to undertake further exercise and as disclosed in the record. It is in these circumstances the Tribunal concluded that the search under Section 132 is a person specific and not a premises specific. It follows that if the name of the assessee against whom the block assessment has been made, does not figure in the warrant of the authorization issued u/s 132, the block assessment would be unauthorized;

++ such a finding in the given facts and circumstances and in the backdrop of several opportunities given to the Revenue to produce the relevant record is a possible and plausible view. That does not raise any substantial question of law. Any larger issue or wider controversy need not be gone into in the facts peculiar to this case. The appeal is, therefore, devoid of any merits and is dismissed. 

No comments: