The prerequisite condition for application of section 153A is that assessment under this section can be made against a person in the case of whom a search is initiated under section 132; non-fulfillment of onditions laid down in sections 153A is a jurisdictional defect which cannot be cured.
RELEVANT PARAGRAPHS
44. We have carefully considered the rival submissions in the light of material placed before us. The assessments in the present case have been made u/s 153A of the Act. Section 13A provides that in case a person against whom search is initiated u/s 132A of the Act then notwithstanding anything contained in sections 39, 147,148,149 151 and 153 of the Income Tax Act, the AO shall issue a notice to such person requiring him to furnish returns of income in respect of six assessment years preceding the assessment year relevant to the previous year in which search was conducted or requisition made. Thus, the pre-requisite of sec. 153A is that assessment under this section can be made only in a case of a person where a search is initiated u/s 132 or books of account or other documents or any assets are requisitioned u/s 132A after 31st day of May, 2003. As the present case is not a case of requisition as
described in sec. 132A, therefore, the prerequisite condition for application of section 153A is that assessment under this section can be made against a person in the case of whom a search is initiated u/s 132 of the Act. It is the case of the assessee that no search has been initiated in its case therefore, resort to sec 153A was in violation of law To examine such contention it has to be seen that whether any search has been initiated in the case of the assessee. Copy of two punchnamas on the basis of which search was conducted in the case of Shn Sandeep Bansal at his residential premises as we” as Jodhpur Branch Office of the assessee, where the person searched was an employee, are placed at pages 1-6 and 7-17 of the paper book filed by the assessee. In both of the punchnamas in column A the name of. Shri Sandeep Bansal has been written which clearly shows that search warrant was in the case of Shri Sandeep Bansal and not in the name of assessee. For sake of convenience the inscription in punchnama regarding column A is reproduced below: –
Punchnama prepared at the residential premises of said Shri Sandeep Bansal –
Panchnama (To be prepared in triplicate)
