SMT.BASANTI CHHAJED vs. THE COMMISSIONER OF INCOME TAX, RAIPUR

HIGH COURT OF CHHATTISGARH AT BILASPUR 3‘ i ; DIVISION BENCH: HON. MR. DHIRENDRA MISHRA & HON MR RN CHANDRAKAR .T.T I.T.A. No.28 of 2004 AippeHcm’r/ Smf. Anifa Parakh Assessee I \ Versus R slpondenf The Commissioner, Income Tax, Raipur & ‘ i‘ i I.T.A. No.29 of 2004 AipBe‘nam/ SmT. Basanti Chhajed A§ssessee \ Versus % i 1 Respondenf The Commissioner, Income i Tax, Roipur' T \ i ORDER FOR CONSIDERATION ' Sdl— ‘T \ Dhirendra Mishl‘a 1 1 Judge \ i \ L M" I g8.o4.2oo9 , (4//, f i HON‘BLE MR. JU$TICE R.N. CHANDRAKAR ‘ Sd/- "-\R.N.Chandrakar y k I ‘ T 3 , W 2; Judge T L \\\ 1 3 (”a 1% .04.2009 iv \ ‘ PosT FOR ORDERS ONOgg-M-zow PM Sd/- 'DmRENDRA MISHRA ‘x T Judge \ , * /

DIVISION BENCH: HON'BLE MR. DHIRENDRA MISHRA & HON‘BLE MR. R.N. CHANDRAKAR. JJ I.T.A. No.28 of 2004 (Appecd under Section 260A of Income Tax Acf, 1961) AND I.T.A. No.29 of 2004 1 (Appea! under Secfion 260A of Income Tax Acf, 1961) Smf. Basan’ri Chhojed, C/o Shri N.C. Nahar, Appellan‘r/ x Assessee 1 I, Malviya Nagor‘, Dur'g Vs Respondent The Commissioner, Income Tax, Raipur. Presenf Mr' Moolchand Jain AdvocaTe wuTh Mr Ashok Pa’rll oppellonfs‘ in bofh fhe appeals Mr' S RaJeshwar Rao Advocafe for The respondenf In boi'h The oppeals :g. Advocafe for The ORDER (Passed onég April, 2009) Dhirendrd Mishro, J; 1. BoT’lh The aboQe appeals are being disposed of by This common order as The; some are arising ouT of The common order doTed 30.9.2003 passed by The Income Tax AppelIaTe Tribunal, Nagpur Bench, Nagpur. 2. The oppelianT has preferred The above appeals under SecTion 260—A of The Income Tax AcT, 1961 (for shorT ‘AcT') on The followin subsTanTiaI quesTions of law1e ‘a. WheTher in The circumsTances of The case,”fhe Income Tax i i i AppeIIaTe Tribunal was jusTified in upholding The validiTy of The assessmenT order passed for The block period u/s 158 BC of The I.T. ACT, 1961, when no separaTe warranT of auThorizaTion was i issued in The name of The assessee” b. WheTher in The facTs & circumsTances of The case, The I.T.A.T. was jusTified in upholding The validiTy of The search & seizure % i ' g Appellan‘rl Sm’r. Ani’ra Parakh, C/o Shri N.C. Nahar, I, Assessee ‘ Malviya Nagar‘, Durg Vs Respondenf The Commissioner, Income Tax, Raipur.

operation wifhou‘r issue of separafe warrant of aufhor'iza'l'ion in fhe name of The assessee, recording reasons for faking acfion ' u/s 132 (1) of fhe I.T. AC1: l i gc. i Whether in The facfs & circumsfances of The case infringemenf of The principles of na’rural jus’rice has ’raken place in nof calling for fhe records of ’rhe CCIT/CIT aufhor'izing The secTion u/s a ) 132 (1) of The I.T. AcT and in noT showing The warranT of auThorizaTion To The assessee despiTe repeaTed requesTs. - 11 d. WheTher in The facTs 6i circumsTances of The case’I TA T has erred In susTainIng The order of The DCIT noT granTing ImmunITy from assessmenT in respecT of Income/weaITh declared under The VDIS, 1997 and in levying double Tax." 3. Briefly sTaTed, facTs of The case are ThaT a search and seizure operaTion was conducTed in The house of one Shri N C Nahar siTuaTed aT ‘ aIVIya Nagar Durg IT Is sTaTed ThaT he was reSIdIng WITh his family members Including The assessee During The course of search beTween 11 11 1997 To 22 11 1997 cerTaIn IncrlminaTIng documenTs were found besides oTher valuables such as cash gold sliver ornamenTs eTc On The basis of documenT so seized which relaTed To The assessee undisclosed Income of The assessee for The block period waslassessedl by The Assessmg Officer under SecTIon 158 BC aT K . Rs 3 26 810/- ValldiTy of said assessmenT was challenged by The assessee on The ground ThaT no search warranT was issued In The name of assessee and In The absence of warranT noTIce issued under SecTion 158 BC of ‘ The AcT as well as ToTal assessmenT proceeding for The block perlod was Invalid The Assessmg Officer afTer conSIdering The obJecTIon of The appellanT assessee added a sum of Rs146 125/- Towards assessmenT year 1998 99 and Thus added undisclosed Income of Rs 3 26 810/— In The income of The assessee Appeal preferred by The appellanT was dismissed by The CIT (A) Raipur Vide order daTed 15.3.2001. Second Appeal was also dismissed by The I.T.A.T., Nagpur Bench by The impugned order. \ i

(1) of The AcT and The appellanT was never shown The warranT of auThorizaTion inspiTe of repeaTed requesTs. AnoTher ground urged by learned i counsel for The appellanT is ThaT The appeIlanT had declared her income under The VDIS, 1997 and accordingly paid Taxes on The i deciared income under ThaT scheme and she was also issued cei'iTi'ficaTe by The respondenT; ’Thus, she was enTiTled for immuniTy in respecT of The income/weaiTh declared by her and she could noT be l subjecfed To double TaxaTion. Reliance is placed in The maTTer of Sailtrl’hern Herbals LTd. Vs. DirecTor of Income Tax (InvesTigaTion) l and oThers‘reporTed in ITR 1994 (Vol.207) 55. 5. From perusal of The assessmenT order passed by The Assessing Officer, order passed by The CIT (Appeals) and The impugned order, iT is observed ThaT similar grounds were urged by The‘appellanT before The above Three forums, however, The argumenTs did noT find favour i and The same were rejecTed by assigning elaboraTe reasons. From clo%e scruTirxy of The impugned order of The I.T.A.T., iT is observed ThaiT The deparTmenTal represenTaTive produced relevanT search wariranT'as per direcTions of The I.T.A.T. and from perusal of The same iT i's found ThaT name of The assessee was clearly indicaTed in The warranT of auThorizaTion issued under SecTion 132 of The AcT. On The objecTion of The assessee ThaT no separaTe warranT of auThorizaTion was issued in The name of Theiassessee‘f‘i‘fhas been held ThaT iT is noT The requiremenT of law To issue separaTe warranT in case of e'ach and every assessee, specially when all The assessee covered by Thei aforesaid warranT of auThorizaTion were residing in one house. Copy of panchnama drawn on 13.11.1997 clearly shows ThaT The panchnama was prepared during The course of search 6i seizure operaTion in The name of The assessee and iT is being so, The i

v confen’rions of fhe assessee fha‘r Search was effected wi’rhouf warrdn’r of aufhor-iza'rion in her name and There is in‘rer-pola‘rion in fhe panchgnama have been negafed and wi1'h these findings The objec’rion relafiing To non-issuance of warranT of auThor‘izaTion has been rejecg’red 'and The orders of The Assessing Officer and The Comniissioner (Appeals) have been affirmed. OTher ground raised by The assessee is ThaT she under bonafide belief ThaT no search and seizure proceedings iniTiaTed againsT her, made decIaraTion under VDIS, 1997. Her decIaraTion .was duly accep§Ted by The concerned Commissioner, who also issued cerTificaTe under Se‘cTion 68 (2) of The VDIS, 1997, and in These circumsTances ' The assessee was enTiTled for immuniTy under VDIS, 1997 and The " jewelllery, which were disclosed under The VDIS, 1997, cannoT be inclu ed again as undisclosed income in block assessmenT. The learned appellaTe Tribunal dealing wiTh The aforesaid l ground held ThaT in view of The specific provisions in The VDIS, 1997 The assessee was noT eligible for making volunTary disclosure of her ‘ l income under ThaT scheme, as The search was conducted under SecTion i l 132 of The AcT in her premises prior To disclosure, as clarified in Circular No.753 daTed 10.6.1997. 6. l In Thfe maTTer pf SouThern Herbals LTd. (supra) iT has been held ThaT before effecTing search and seizure, The warranT of auThorizaTion under; SecTion 132 (1) for The same is a musT. The auThorizaTion has To be‘in The prescribed proforma, lT is noT TherequiremenT of law ThaT The warranT is To be delivered or furnished To The persons againsT whom iT is issued, iT i's sufficienT if such a person is shown The warranT of auThorizaTion. IT is noT for The courT To examine Thé"§ufficiency of The maTerial leading To be belief of The auThoriTy ThaT search shall have l'To be conducTed. Scope of inTerference in wriT jurisdicTion while examining The validiTy of auThorizaTion is limiTed To see wheTher The belief formed by The auThoriTy issuing The auThorizaTion was a reasonable belief. l

i Roshan/- ‘ ‘} I 5 % 7. In The insTanT case, fhe Tribunals below have recorded concurrenf fmding of facf 'rha‘l‘ The warrant of au’rhor‘izafion was issued in The na’me of appellant—assessee and fhe war'mm‘ of aufhor‘izafion in quesTion was produced before ’rhe ITAT by The deparTmenTal rebresenTaTive in The appeal proceedings. In ThaT view of The maTTer, we are of The opinion ThaT boTh The appellaTe courTs below have recorded a concurrenT finding of facT ThaT a valid‘ warranT of auThorizaTion was issued in The name of The appellanf and no subsTanTial quesTion of law as proposed in The memo of appeal exists for consideraTion of This appeal slmhrly, The oTher ground ThaT The appellanT declared Jewelry under The VDIs 1997 paid Taxes as per scheme and cerTIfIcaTe To This effecT was Issued-To her by The compeTenT auThoriTy is concerned, Mr. Jain does noT dispuTe ThaT an assessee, whose premises has been searched under SecTion 132 of The AcT, could noT Take benefiT of VD;5, 1997. Only argumenT was ThaT she was noT aware abouT any sea‘rch or seizure in her premises as The same was carried ouT behind her back and Therefore she could noT be proceeded for disclosed income for The block period w1ThouT revoking cerTIfIcaTe granTed To her under The VDIS, 1997. From The order Impugned and The order of The Commissioner (Appeals) iT is evidenT ThaT There is a finding of facT recorded by boTh The courTs ThaT The appellanT was aware of The search and seizure operaTIon carried ouT beTween block period from 11 11 1997 To 22 11 1997 and in These CircumsTances iT has been righTIy held ThaT she could noT Take benefiT of VDIS, 1997. 9. For The aforesaid reasons we are of The opinion ThaT There is no quesTion of law much less subsTanTial quesTion of law for adJudicaTion of This appeal The appeals deserve To be dismissed and The same are hereby dismissed aT The admisswn sTage iTself. 10. No order as To cosTs. % . «m l Sd/- l Judge DmENDRA MISHRA L .