Search on holding company and assessee name not mentioned in warrant so Assessment U/s. 153A is void ab initio

Dorf Ketal Chemicals LLC Vs. Dy. CIT (ITAT Mumbai)

From the perusal of the provisions of section 153A of the Act that notice under section 153A can only be issued where a search is initiated under section 132 of the Act or books of account or other documents other documents are requisitioned under section 132A after the 31-5-2003. Thus the assessing officer has power to issue notice to such person requiring him to furnish return of income in respect of each assessment year falling within six assessment years falling immediately preceding assessments relevant to the previous year in which the search is conduced or requisition is made. Therefore, it is clear that for the purpose of assumption and exercise of powers under section 153A of the Act in case of a person, the initiation of search in terms of section 132 of the Act or 132A of the Act on the said persons is mandatory and therefore whether there is no initiation of search as contemplated under section 132 of the Act, the fundamental conditions for issuance of notice under section 153A is not fulfilled. Thus, the person in respect of whom the search is initiated under section 132 of the Act is the same persons against whom the notice is to be issued under section 153A of the Act. In view of this legal position, we are of the considered view that since no search has been initiated under section 132 of th4e Act in the case of assessee therefore notice issued under section 153A of the Act is without jurisdiction and the consequent assessment so framed under section 143(3) read with section 153Á of the Act was also void abinitio.

Full Text of the ITAT Order is as follows:-