COMNR.OF INCOME TAX vs. SIKHYA O ANUSANDHAN

Pursuant to such search and seizure operation, proceedings under Section 153A of the Act were initiated against the Respondent- Assessee. A tax demand of Rs.15,35,75,989/- was raised for the aforementioned seven AYs i.e. 2000-01 to 2006-07.

Challenging the assessment orders, the Respondent-Assessee filed appeals before the Commissioner of Income Tax (Appeals) [CIT(A)]. After the appeals were dismissed by the CIT(A), the Assessee went in appeals before the ITAT where for the first time it raised an additional ground that since no search warrant had been

The ITAT, in the first round, remitted the matters to the CIT(A) to first decide the additional ground viz., whether in fact any search warrant was issued authorizing the search conducted in the premises of the Respondent-Assessee.

Aggrieved by the aforesaid order of the ITAT, the Assessee came before this Court in appeal which came to be decided by a Division Bench of this Court in Siksha “O” Anusandhan v. Commissioner of Income Tax, Orissa (2011) 336 ITR 112. This Court noted that from the order of the ITAT it was not clear whether the Revenue had produced the relevant search records and whether the ITAT had been able to verify therefrom whether in fact there was search warrant. It was held by this Court that the matter should not have been remitted by the ITAT to the CIT(A) for adjudication of the additional ground without undertaking the aforementioned exercise. As a result, the order of the ITAT was set aside by this Court and the matter was remitted to it to be re-heard. In the operative portion of its order, this Court made it clear “that if the Tribunal comes to the conclusion that there was no search warrant in the name of the Appellant as contended by the Appellant-assessee, then it would be open to the Department to make assessment in a manner other than Section 153A, if permissible under the law.”

Pursuant to the above order of this Court, the ITAT was again seized up the matter and passed the impugned order against which the Revenue is in appeals before this Court.

In the said impugned order, passed after remand, the ITAT came to the categorical conclusion, after examining the records produced by the Revenue, that no search warrant had been in fact issued authorizing the search conducted in the premises of the Respondent-Assessee. As a result, the ITAT concluded that the assessment against the Respondent-Assessee under Section 153A of the Act was “without jurisdiction and liable to be quashed.”

Before this Court, Mr. Radheshyam Chimanka, learned Senior Standing Counsel for the Revenue Department-Appellant placed reliance on the judgments of the Punjab and Haryana High Court in Jai Bhagwan Om Parkash v. Director of Inspection (1994) 208 ITR 424 (P & H) and on the Madras High Court in I. Deverajan v. Tamilnadu Farmers Service Co-Operative Federation, 131 ITR 506 (Mad.). Having examining the said two decisions, the Court finds that they arose in different fact situations and, therefore, are distinguishable. As far as the present cases are concerned, this Court in the first round of litigation accepted the legal position that without there being a valid search warrant authorizing the search in the premises of the Assessee under Section 132 of the Act, the question of initiating proceedings under Section 153A of the Act did not arise. The matter had been remanded to the ITAT only for determining the factual aspect of the existence of a valid search warrant.

Before this Court also the Revenue has not been able to demonstrate that there exists in the records of the Revenue a valid search warrant authorizing the searches that were conducted in the premises of the Respondent-Assessee on 9th and 10th August, 2005.

As a result, the Court is unable to be persuaded to frame the question as urged by the Revenue in these appeals. No substantial question of law arises for consideration by this Court.

The appeals are accordingly dismissed.