ACIT CENTAL CIRCLE 25 NEW DELHI, DELHI vs. SANJAY JAIN, DELHI

The Ld.AR further argued that the contention of the Ld. DR that the Warrant no. 7263 dated 06.02.2019 and its respective Panchnama forms part & parcel of the assessment records and therefore, the same cannot be termed as “additional evidence” as the said documents were already lying in the file/assessment & case records of the Ld. Assessing Officer as well as that of the Ld. PCIT and therefore, all the arguments raised by the Ld. DR are legally not tenable and have no substance in the eyes of law.

The Ld. AR also submitted that the law laid down by the Hon’ble Apex Court of the Country in the case of NTPC v. CIT [1998] 97 Taxman 358 (SC) vide order dated 04.12.1996 which states that the appellate authorities have jurisdiction to examine any ground having a bearing on the tax liability of the assessee which goes to the roots of the matter in accordance with law and reason and the same cannot be overlooked. Therefore, even if the assessee did not take up the issue before the Ld. PCIT, it can always raise any ground before any appellate authority which goes to the roots of the matter and have a great bearing on the outcome of the case and therefore, the arguments raised by the Ld. DR are devoid of merit. to 5088 & 5097 to 5102/Del/2024 CO Nos. 64 to 74/Del/2025 Sanjay Jain 21. Considered the rival submissions and perused the material placed on record. We observed that the assessments were framed by the Assessing Officer u/s 153A of the Act for AY 2009-10 to AY 2019-20 pursuant to search action conducted at the residential premises of the assessee at H.no. 17, Road no. 71, Punjabi Bagh West, New Delhi under Warrant no. 7263 dated 06.02.2019 in the case of “Avtar Singh Kochar, Gagandeep Singh Kochar, Hari Singh Kochar, M/s. H.L. Forex Pvt. Ltd.”. On query raised during the hearing at the bar, the Ld. DR failed to produce any other warrant in the name of the assessee, i.e., Mr. Sanjay Jain and moreover, there can be no presumption or assumption with regard to any additional warrant unless & until produced before the Bench. As already mentioned above, the Ld. DR was unable to produce any other warrant in the name of the assessee.

The provisions of Sec. 153A of the Act mandates that to issue a notice u/s 153A, a search must have been initiated in case of the said person based on a warrant of authorization issued in the name of very such person, i.e., to invoke the provisions of Sec. 153A, initiation of search u/s 132 in case of the said person is a prerequisite. The person referred under Sec.153A and Sec. 132 is one & the same person. It is an undisputed & undeniable fact that there must be an issuance of a valid warrant of authorization of search in the name of the very person u/s 132 of the Act in whose case proceedings u/s 153A of the Act are initiated. In the case of the assessee, the Warrant of Authorization, Warrant no. 7263 on Form 45, was issued in the names of “Avtar Singh Kochar, Gagandeep Singh Kochar, Hari Singh Kochar, M/s. H.L. Forex Pvt. Ltd.” And not in the name of the assessee, i.e., Sh. Sanjay Jain.

Therefore, we find merit in the argument of the Ld. AR that when no Warrant of Authorization has been issued u/s 132 of the Act in the name of the assessee then the assessment proceedings & orders cannot be framed u/s 153A of the Act in case of the assessee. Hence, the orders framed u/s 153A of the Act in case of the assessee are non-est, invalid, void-ab-initio, illegal and unlawful. Further, the facts of the instant case of the assessee are also similar to the case of Jindal Stainless Ltd. v. ACIT, CC-6 [2009] 120 ITD 301 (Delhi) as relied upon by the Ld AR whereby the Cordinate Bench held that the assessments framed on the assessee under section 153A are invalid assessments when there is no warrant of authorization of search u/s 132 of the Act in his own name. Accordingly, following the decision of the coordinate bench only, it is held that the assessments to 5088 & 5097 to 5102/Del/2024 CO Nos. 64 to 74/Del/2025 Sanjay Jain framed u/s 153A of the Act in case of the assessee are non est, invalid, voidab-initio, illegal and unlawful and deserves to be quashed in the interest of justice.

As regards the second argument of the Ld AR is concerned that when the primary proceedings are non-est then the subsequent proceedings cannot be treated as valid also holds good and the same is also a covered matter of the coordinate Bench in the case of M/s Shahi Exports Pvt. Ltd. v. PCIT in which has been relied upon by the Ld AR as well.

Further, we also do not find any merit in the arguments raised by the Ld. DR so far as that the Ld. PCIT was not in the possession of the Search Warrant and Panchnama as it is the duty of the Ld. PCIT to examine each & every document of the completed assessment record before passing any order u/s 263 of the Act and the Warrant no. 7263 & its respective panchnama forms are an integral part of the assessment records and it cannot be said that these documents were not in possession of the Ld. PCIT while examining the assessment records. In our view, the said documents cannot at all be described as additional evidence and the Revenue cannot term its own records as Additional Evidence. Therefore, the decision of the coordinate bench in case of FR Sauter AG v. ITO (Intl. Tax) (2024), 158 Taxmann.com 161 the (Delhi Tribunal) as relied upon by the Ld. DR does not holds good in the instant case as the Revenue cannot term its own file/ documents available in the assessment records forming part of the revisionary proceedings u/s 263 of the Act as “Additional Evidence” under any stretch of imagination. Accordingly, the copy of search warrant and consequent panchnama relied upon by the assessee which were already in the possession of the Revenue since inception will not qualify as Additional Evidences in terms of Rule 29 of Income Tax (Appellate Tribunal) Rules, 1963.

Moreover, during the revision proceedings u/s 263 of the Act, the Ld AR has drawn the attention of the Ld. PCIT vide their reply dated 26.03.2024 that “no Search Warrant has been issued in the name of the appellant and therefore, no legally tenable proceedings arises u/s 263 r.w.s. 153A of the Act which is a matter emanating from the facts on record”. However, the Ld. PCIT failed to go through the case records and erroneously proceeded with proceedings u/s 263 of the Act based on a non-est, invalid, void-ab-initio, illegal and unlawful order u/s 153A of the Act which is bad in law.

In view of the above discussion, since the orders u/s 153A of the Act are held to be non-est, invalid, void-ab- to 5088 & 5097 to 5102/Del/2024 CO Nos. 64 to 74/Del/2025 Sanjay Jain initio, illegal and unlawful, the consequent orders passed by the Ld. PCIT u/s 263 of the Act for AY 2013-14 and AY 2015-16 are hereby quashed on the principle that in case the foundation is removed (i.e., assessment orders u/s 153A of the Act), the super structure (i.e., orders u/s 263 r.w.s. 153A of the Act) must fall.”

This being the clinching factual position going un-rebutted from the Revenue side, we are of the considered view that all these section 153A assessment forming subject matter of adjudication in Revenue’s instant eleven appeals and the assessee’s as many cross objections; deserves to be quashed as non-est in the eyes of law in very terms. We order accordingly.

All other pleadings on merits between the parties stand rendered academic.

To sum up, these Revenue’s eleven appeals to 5088 & 5097 to 5102/Del/2024 are dismissed and the assessee’s as many cross objections CO Nos. 64 to 74/Del/2025 are allowed in above terms. A copy of this common order be placed in the respective case files.