CASE LAW DETAILS
Decided by: ITAT, MUMBAI BENCHES `C’ : MUMBAI, In The case of: Asha Maritime (India) Pvt. Ltd. V DCIT, Appeal No.: IT (SS) A. No. 441/Mum/2003, Decided on: July 14, 2008
11. Section 132(1) empowers the Director General or Director or the Chief Commissioner or Commissioner or any such Joint Director or Joint Commissioner, as may be empowered in this behalf by the Board to authorize Joint Director, Joint Commissioner or other lower authorities to conduct the search if the former authority has reason to believe that the case falls under clauses (a) to (c) of subsection (1). Thereafter, the authorized officers conduct the search subject to the relevant provisions. It, is therefore, discernible that the search action is largely bifurcated into two stages, viz., the initiation of search and the conduct of actual search. The first stage sets the process of search into motion. The warrant of authorization lays the foundation for erection of the edifice of proceedings u/s. 132 and the process of initiation of search commences with its signing. It is one of the preliminary acts in the series of acts in the initiation of main action. Therefore, the search initiates on issuance of the Warrant of authorization. The argument on behalf of the Revenue that search action commences with its actual conduct by visiting the premises of the assessee and the warrant of authorisation is immaterial, in our considered opinion, is sans merits. The process of search, in fact, commences when a valid Warrant of authorization is signed. Our view accords with the order passed by the Jodhpur bench of the tribunal in the case of Suraj Prakash Soni VS. ACIT (2007) 106 ITD 321(Jd) [one of us, namely, the AM is party to that order.] The second stage is the execution of search warrant or conduct of actual search by translating the warrant of authorization in to actual action, which follows the initiation of a valid search with the issuance of authorization by the competent authority. The second stage is the direct outcome of the former without which the entire exercise would be illegal and void. It is, therefore, simple and plain that Warrant of authorization is the decisive document for determining as to whether the person has been subjected to search or not. It is in Form No.45 which specifies the names of the persons, who are to be subjected to actual search action and also the premises where the books of account or other documents, etc., might have been kept by them. The drawing of Panchnama is an act which falls in the second stage being the conduct of actual search. So a person whose name is included in the Warrant of authorization is one with respect to whom search is made u/s.132. Such persons are covered u/s.158BC and the time limit for completion of block assessment applies as provided u/s 158BE(1). On the other hand, if a search is conducted on one person u/s. 132 and the A.O. is satisfied that any undisclosed income unearthed due to such search is found to be belonging to some other person, then the block assessment is made u/s.I58BD on such “other person” subject to the provisions of the Act. Thus, the block assessment provisions extend not only to the person who has been searched u/s. 132 but also to ”the other person” who was not subjected to search but undisclosed income as found in search on the former was found to be belonging to him. In the later case, the Lime limit as enshrined in section 158BE would apply.
12. Adverting the facts in the instant case, we note from the Warrant of Authorization placed on record that the name of the assessee , that is , “M/s Asha Maritime (India) Private Limited” specifically finds mention in it along with other group concerns. It is, therefore, abundantly clear that the assessee was also subjected to search u/s. 132. A copy of Panchnama dated 9.9.1998 has been placed on record, which again shows the names of parties in whose name warrant to search was issued. It mentions “M/s Asha Clearing Agency Private Limited and other group of companies”. From the narration of above facts, there remains no doubt whatsoever that the assessee was subjected to search u/s.132. The learned D.R. unsuccessfully tried to point out that the address of the assessee was not mentioned in the Warrant of Authorization. Here, again, we find that the address has been given in it as “II and III Floor, Ida Mansion, 18 Vaju Kotak Marg, Ballard Estate, Mumbai 400 038″. The assessee is carrying on its business al this very address at 2nd Floor, as has been mentioned in the titles of the assessment order. We, therefore, do not approve the endeavour of the learned D.R. in trying to distinguish between two locations, i.e., 23 and 27 Ida Mansion, 2nd Floor to make his submission that the assessee was carrying on business at 27 Ida Mansion and the Panchnama mentioned the address as 23, Ida Mansion. Primarily, we note that the Warrant of the authorization contains the address as 2nd and 3rd Floor without reference to any particular number on that floor, be it 23 or 27. Secondly, the Panchnama contains the address as 23rd Ida Mansion and the Assessing Officer himself has given the same address of the assessee Not only that, the Annexure-A4 in the Departmental paper book given in the case of Shri M.K.Shah and Shri Rajiv Shah also clearly states that the Warrant of authorization was issued in the name of the assessee on 7.8.1998 and the search was concluded on 9.9.1998. Under these circumstances we are of the considered opinion that the assessee was searched u/s 132 and accordingly the time under section 158BE(1) would apply.