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Before: SHRI SANDEEP GOSAIN & SMT. RENU JAUHRI
सुिवधई की िधरीख / Date of Hearing 18.03.2025 घोर्णध की िधरीख/Date of Pronouncement 21.05.2025 आदेश / O R D E R PER RENU JAUHRI [A.M.] :- This appeal is filed by the revenue against the order of the Learned Commissioner of Income-tax (Appeals), Mumbai-49 [hereinafter referred to as “CIT(A)”] dated 31.07.2024 passed u/s. 250 of the Income-tax Act, 1961 [hereinafter referred to as “Act”] for Assessment Year [A.Y.] 2008-09.
The revenue has raised the following grounds of appeal:
1. Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in holding the assessment under Section 153A for the A.Y. 2008-09 Balaji Universal Tradelink Pvt. Ltd. Assessment Year 2008-09 to be invalid on the ground that the name of the assessee was not separately mentioned in the panchnama drawn during the search, despite the fact that the number of the Warrant of Authorization was clearly mentioned in the panchnama and the name of the assessee was explicitly listed in the Warrant of Authorization, thereby ignoring the validity of the search and the jurisdictional authority under which the search was conducted?"
Brief facts of the case are that the assessee had filed return declaring total income of Rs. 68,75,572/- on 23.09.2008. Subsequently, a search and seizure action was conducted u/s 132(1) of the Act in the cases related to Madhu Koda, including those of Shri Manoj V. Punamia and others by the Investigation Wing, Mumbai. In the search action on 31.10.2009, the assessee company was also covered. Shri Manoj Punamia and Smt. Lata Jain are the directors of the assessee company, which is stated to be engaged in the trading of gold jewellery, gold bars, platinum bars, etc. Consequently, a notice u/s 153A was issued on 09.08.2011, in response to which, the assessee filed return declaring income of Rs. 68,75,723/- on 24.08.2011. The assessment was completed at an income of Rs. 11,31,66,084/- after making various additions u/s 153A r.w.s. 143(3) of the Act vide order dated 07.08.2012.
Aggrieved with the order of Ld. AO, the assessee preferred an appeal raising several grounds before Ld. CIT(A). The assessee, inter alia, challenged the validity of the notice issued u/s 153A, contending that no search had been carried out on the assessee. Ld. CIT(A) observed that this issue was covered by the decision of the coordinate bench vide order dated 31.10.2016 in the assessee’s own case for AY 2004-05 to AY 2007-08. Relying on the order of the A.Y. 2008-09 Balaji Universal Tradelink Pvt. Ltd. coordinate benches, Ld. CIT(A) held that since this order arises out of the same search, which has already been held as invalid, allowed the assessee’s appeal by holding that the assessment u/s 153A r.w.s 143(3) was invalid.
Aggrieved with the order of Ld. CIT(A), the revenue is in appeal before us. During the course of the hearing, Ld. DR submitted that the order of the coordinate bench for earlier assessment years relied upon by the Ld. CIT(A) was decided without considering the warrant of authorisation and simply on the basis that the panchnama did not specifically mention the name of the assessee company. Ld. DR produced the warrant of authorisation along with the panchnama before us to demonstrate that the search warrant contained the assessee’s name specifically, and hence, the decision of the coordinate bench would not be applicable in the present case. The written submissions dated 20.03.2025 made by Ld. DR on the issue are taken on record wherein she has relied heavily on the decision of the Hon’ble Delhi High Court in the case of MDLR Resorts Pvt. Ltd. v/s CIT 40 taxmann.com 365 (Del.), wherein under similar facts and circumstances, the search was held to be valid.
Ld. AR, on the other hand, has strongly relied on the orders of Ld. CIT(A) as well as the decision of the coordinate benches in & 2186/Mum/2013 for AYs 2004-05 to 2007-08 as well as in & 1292/Mum/2018 for AY 2009-10. It has been argued by Ld. AR that the issue has been discussed at length and decided by the coordinate bench vide order A.Y. 2008-09 Balaji Universal Tradelink Pvt. Ltd. dated 31.10.2016 in which has been followed in AY 2009-10 as well.
7. Ld. AR’s detailed written submissions are also taken on record.
After careful consideration of rival submissions and the material placed on record, we observe as under: a. Admittedly, a search and seizure action was carried out on 31.10.2009 at the residential premises of Shri Manoj B. Punamia, and others in Madhu Coda Group of cases. The assessee company was also covered under the said action. Shri Manoj B Punamia is a director of the assessee company. Similarly, Smt. Lata Jain, wife of Shri Manoj Punamia, is also a director and a substantial shareholder of the assessee company. Consequent to the search, a notice u/s 153A was issued on 09.08.2011 and the assessment u/s 143(3) r.w.s. 153A was completed on 07.08.2012 at an income of Rs. 11,31,66,090/- as against returned income of Rs. 68,75,723/-. The following additions were made by the Ld. AO: i. Bogus share application u/s 68 of the Act - Rs. 2,58,83,000/- ii. Cash payment on account of purchase of flat – Rs. 6,00,00,000/- iii. Remuneration paid to director - Rs. 2,00,000/- iv. Addition on account of unaccounted gold – Rs. 2,02,07,361/- A.Y. 2008-09 Balaji Universal Tradelink Pvt. Ltd. b. Although several grounds were raised by the assessee, but Ld. CIT(A) decided the case on the sole legal ground regarding the validity of the search. Ld. CIT(A) relied on the orders of the coordinate bench in assessee’s own case for AY 2004-05 to 2007- 08 in to 2186/Mum/2013 dated 31.10.2016, wherein the search was held to be invalid in view of the absence of the warrant of authorisation and valid panchnama. c. It is seen that the decision of the coordinate bench for these years is heavily based on the fact that the warrant of authorisation was not produced by the Ld. DR/AO before the coordinate bench, and since the panchanama did not explicitly mention the name of the assessee company, the search was held to be invalid. d. Accordingly, Ld. CIT(A) dismissed the assessee’s appeal with the following observations: “6.3.3 Thereafter, the Hon'ble ITAT has decided the appeal for AY 2009-10 vide order dated 29.04.2022. In this order the Hon'ble ITAT has followed the earlier order of ITAT dated 31.10.2016 and held that the search conducted on the appellant is invalid in view of absence of warrant as well as Panchnama, Accordingly, the assessment u/s 153A is held as invalid. 6.4 As can be seen from the above two orders of Hon'ble ITAT that, the search carried out in case of the appellant dated 31.10.2009 is held as invalid in absence of valid Panchnama. As the impugned assessment year l.e. AY 2008- 09 is also arising out of the same search, the decision of ITAT is applicable for this year also. Therefore, respectfully following the decision of Hon'ble ITAT, the assessment completed u/s 153A r.w.s 143(3) dated 07.08.2012 is held as invalid and accordingly the same is quashed. The appeal on this ground is thus ALLOWED.
Grounds of appeal
on merit- While dealing the legal ground no. 7 above, I have already held that the assessment completed u/s 153A r.w.s 143 as invalid. Therefore, all the grounds A.Y. 2008
09. Balaji Universal Tradelink Pvt. Ltd. of appeal raised on merit have become academic. Hence the same are not adjudicated.” e. It is thus clear that the above decision is based on the fact that no valid panchnama has been drawn in the case of the assessee, and also the department was not able to produce the warrant of authorisation. Hence, the search and consequential assessment u/s 153A were held as invalid and accordingly quashed.
9. However, during the course of the hearing, Ld. DR has now produced a copy of the warrant of authorisation No. 6785 before us, in which it has been clearly mentioned that the search warrant u/s 132 of the Act has been issued in the following names: Manoj B. Punamia, Balaji Lifestyle Realters Ltd, Balaji Universal Trade Links Pvt. Ltd., Balaji Bullions and Commodities (1) Pvt. Ltd, Threewin Maritime Pvt. Ltd. and Labh Commodities Pvt. Ltd. It has further been pointed out by the Ld. DR that the panchnama, though, mentions the name of ‘Shri Manoj B. Punmia and Group’ relates to this warrant only as warrant No. 6785 is mentioned on the top right corner of the panchnama. It is, therefore, clear that the warrant has been executed in the name of the assessee, and a panchanama with reference to this warrant was drawn in the name of ‘Manoj B. Punamia and group’, and hence, it relates to all the six entities mentioned in the warrant of authorisation. As Ld. CIT(A) held the search to invalid in the absence of warrant of authorisation as well as the valid panchnama and did not adjudicate the remaining grounds, we are of the A.Y. 2008-09 Balaji Universal Tradelink Pvt. Ltd. considered opinion that in view of the warrant of authorisation produced during the course of hearing before us, it would be appropriate to remand back the case to Ld. CIT(A) to take a decision afresh on merits on all the grounds raised by the assessee.