Mere mentioning of name in Search Warrant & Panchanama not sufficient for contemplating search against the assessee firm, Search at the residential premises of the Partners could not be deemed to be a search on the assessee firm, In pursuance of only a survey operation under section 133A, assessments u/s.153A could not be framed.
In this case there was a search. In the warrant of authorisation the assessee’s firm’s name was there atfer the names of 8 individuals of the same group. The place of search was mentioned as residence of Shri Pritpal Singh Chandhok and others located at Pritpal Farm House, VIP Road, Raipur. The said premises is not the business premises of the assessee firm though the assessee’s partners reside at the said place. In this view of the matter on the anvil of Hon’ble Bombay High Court decision in the case of Tirupati Oil Corporation (supra) and Hon’ble Karnataka High Court decision in the case of Nenmal Shankarlal Parmar (supra) it cannot be said that there was any search on the assessee firm. Further more it is noted that in the said search no material whatsoever relating to the assessee firm was found nor even any statement of the partners of the assessee ifrm was taken. Further more there is no evidence on record to show that even the notice of search was served upon the partners of the firm. In these circumstances, in our considered opinion, it cannot be said that there was any valid search upon the assessee firm. Drawing strength from the Hon’ble Bombay High Court decision in the case of M/s J.M. Trading Corporation (supra) we hold that since the assessment u/s 143(3) read with section 153A in this case has been done in pursuance of an invalid search, the same deserves to be declared as null and void.
We also note that on the same date of search the Revenue has conducted Survey operation at the business premises of the assessee firm in which materials were seized. This survey does not entitle the Revenue to initiate proceedings u/s 153A. Having searched the residence of partners of the assessee firm Revenue could have initiated action against the assessee firm only u/s 153C had any document pertaining to the firm were seized from the residential Pemises. Since no material was seized, the Revenue could not have initiated proceedings against the assessee firm u/s 153C. In these circumstances, in our considered opinion, the Revenue cannot take shelter of provisions of section 153A for initiating action against the assessee which we have found to be not a valid one qua the assessee firm.
On a query from the Bench as to why a search was not conducted at the business premises of the assessee firm when search was conducted at the residence of the partners and only survey operation was conducted at the business premises of the assessee firm on the same day, learned D.R. submitted that this is primarily done in view of the information available for initiating of the search. He further submitted that the Revenue wants to conduct minimum amount of search to keep the statistics of search in proper order. In our considered opinion this submission of the learned D.R. cannot be a reasoning to hold that by means of an invalid search Revenue can take recourse to provisions of section 153A. Hence on the anvil of aforesaid case laws from’
Honble High Courts, we hold that since the warrant of search was not executed the business premises of the assessee firm and from the place of search no material whatsoever relating to the firm was found nor any submission was recorded from the partners of the firm nor the search notice was served upon the partners of the firm, the search conducted qua the assessee firm was not a valid search. In such circumstances, proceedings initiated u/s 153A in the case of the assessee firm are invalid. Accordingly we do not find any infirmity in the order of learned CIT(Appeals). Accordingly we uphold the same.