Case Law Details
Mahendra Auto Services (AOP) Vs ACIT (ITAT Pune)
For issuing notice u/s 158BC, there has to be a search in the case of ‘any person’, then the Assessing officer shall serve a notice to ‘such person’. It means notice u/s 158BC can be issued to only such person who has been searched u/s 132 of the Act. Search under section 132 of the Act cannot be without warrant of Authorisation. In the case under consideration, as narrated in the earlier paras, there was no warrant of Authorisation in the name of Mahendra Auto Service, AOP of Prithviraj Shinde, Rajendra Shinde, Bhikan Shelke, Bharat Pawar, Gopinath M Wadi, Ashokkumar Sangtani. The department was not aware about any business activity carried on by these 6 persons together. The Department had information only about four persons. Therefore, there is no satisfaction by the department prior to search about impugned business activity of 6 person together. Without satisfaction there cannot be any warrant of authorization.Therefore, we are of the considered opinion that the department had no information about joint business activity of these impugned 6 persons , department had no information about impugned AOP of 6 person and there was no warrant of Authorisation in the name of Mahendra Auto Service, AOP of Prithviraj Shinde, Rajendra Shinde, Bhikan Shelke, Bharat Pawar, Gopinath M Wadi, Ashok kumar Sangtani, therefore, on the facts and circumstances of this case the impugned notice issued u/s 158BC on the impugned AOP of 6 persons is void ab initio. Therefore, the Assessment order passed u/s 158BC rws 143(3) against the impugned AOP is bad in law. The Warrant of Authorisation issued in the name of Mahendra Auto Service, Avadhan Dhule, at the most may be inferred as warrant against the Mahendra Auto Service AOP of the four persons whose names have been mentioned by the ADIT in his report which is reproduced in earlier para.
FULL TEXT OF THE ORDER OF ITAT PUNE
This appeal filed by the Assessee is directed against the order of ld.Commissioner of Income Tax(Appeals)-1, Nashik, dated 15.02.2016for the Block Period 01.04.1987 to 10.07.1997.The Assessee raised following grounds of appeal:
“1. In the facts and circumstances of the case and in law, the learned C.I.T.[A] has failed to appreciate that since the satisfaction recorded by ADIT [Inv] before issuance of search warrant was in the name of AOP consisting of four persons, the impugned assessment made on deemed AOP consisting of six persons u/s 158 BC[c] of the I.T. Act 1961 was contrary to the provisions of law. The impugned assessment order passed by the learned Assessing Officer being bad in law, void ab initio, null and void and being without jurisdiction the learned CIT [A] ought to have be annulled the same.
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