M/S NEW VIRAJ HOUSING AGENCY,NAGPUR vs. ACIT, CENTRAL CIRCLE-1(1), NAGPUR

1 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SANDEEP GOSAIN, JM AND SHRI ARUN KHODPIA, AM I.T.A. NO Asstt Year 183/NAG/2017 2010-11 184/NAG/2017 2011-12 185/NAG/2017 2012-13

M/s New VirajHousing Agency Vs. ACIT 16 & 17, Medical College Road, Central Circle 1(1) TB Ward Chowk, Nagpur-440003 Nagpur PAN No AAEFN0705D Appellant Respondent

Appellant by: Shri Sudesh Banthia CA Respondent by:Shri Piyush Kolhe (CIT-DR) Date of Hearing: 28/04/2022 Date of Order : 28 /06 /2022

ORDER PER: SANDEEP GOSAIN, J.M. These are 3 appeals filed by the assessee against the separate orders dated 21/03/2017of Commissioner of Income Tax (Appeals)-3, Nagpur, [“Ld. CIT(A)”, for short] relating to A.Y.2010-11 to AY 2012-13 in the matter of order passed u/s.153A r.w.s 143(3) of the IT Act, 1961. 1. All the appeals involve mostly common issues, except variation in figures, which arose out of same set of facts and circumstances. Thus, for the sake of convenience, the appeals for

2 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR all the years under consideration were heard together and are being disposed of by this consolidated order. 2. The first 3 legal grounds raised in all the assessment years in appeal are similar and the adjudication of the same will decide the fate of the present appeals. Considering the same, we shall proceed to adjudicate the legal issues raised in Ground No 1 to 3,which read as under:

3 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR and seizure operation u/s 132 was conducted at the residential premises of partners at 40, Deshmukh Apartments, Dattatray Nagar, Nagpur and survey u/s 133A(3)(ia) at the business premises of the appellant at 16 & 17, Medical College Road, TB Ward Chowk, Ajni, Nagpur on 19/04/2012. Notice u/s 153A was issued on 23/04/2013. The appellant filed its return in response to the said notice on 13/03/2015. The assessment for AY 2010-11 and AY 2011-12 was ,therefore, complete and not pending on the date of search. The time limit for the issue of notice u/s 143(2) had also expired. The assessing officer (AO) framed the assessment order u/s 153A r.w.s. 143(3) of the Act on 30/03/2015 and determined assessed income of Rs 30,43,030/- for AY 2010-11, Rs 90,91,140/- for AY 2011-12 and Rs 1,12,27,727/- for AY 2012-13. Aggrieved with the said decision the assessee filed an appeal before the Ld. CIT(A).

4 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR in Form No 45 though bears the name of the assessee, the place of search mentioned therein is the residence of partnersi.e2nd Floor, Deshmukh Apartment, 40 Dattatray Nagar, Nagpurand so the warrant authorised the authorised officers named in the warrant, only to enter and search the specified building i.e. 2nd Floor, Deshmukh Apartment, 40 Dattatray Nagar, Nagpur. Thus, the only place that could have been searched on the strength of warrant of authorization was the residential premises of partners and not any other place. The Ld. counsel for assessee also submitted that the premises searched does not belong to or is owned by the assessee firm and mere mention of the name in the warrant does not mean that the search has actually been initiated and conducted at the assessee’s business premises. There is no office of partnership firm at the residential premises of partners given in the warrant of authorisation. The Ld. counsel for assessee further contended that no statement under the provisions of section 132(4) of the Act of any of the partners of the assessee firm with reference to search was recorded and no Panchanama was made in the name of assessee firm to affect any seizure as a result of any such search operation shows that there was no search action in the case of the assessee firm. The Ld. counsel argued that since no search u/s 132 was actually conducted at the assessee’s business premises, the AO had no jurisdiction to issue notice and pass order u/s 153A.Therefore, there being no search in terms of sec. 132(1) the notice issued u/s 153A and the impugned assessments framed u/s 153A is bad in law and deserves to be annulled. The assessee relied on the decisions of ITAT Raipur bench in ACIT Vs M/s S.P.Cold Storage in ITA Nos 142 to 147/BLPR/2012 , ITAT, Mumbai bench in the

5 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR case of J.M. Trading Corpn. Vs. ACIT reported in (2008) 20 SOT 489 (Mum.)& ACIT vs. Sarvmangalam Builders & Developers Pvt. Ltd. in ITA No.196 to 198/Del/2011.

The Ld. Counsel for assessee further contended that the additions have not been made on the basis of any incriminating material found during search. He argued that since, no search was conducted in the case of assessee, hence no question of finding any incriminating material arises, therefore, no addition can be made u/s 153A of the Act. In this regard, assessee placed reliance on the decision of the Jurisdictional Bombay High court in M/s Continental Warehousing -ITA No 523, Al Cargo Logistics ITA No 1969 and Murli Agro Products- ITA No 36/2009 and others. Assessee also contended the merits of the additions made by the AO. After considering the submissions of the assessee, the Ld. CIT (A) upheld the order passed by the AO. Thus, further aggrieved, the assessee has filed the present appeal before us.

6 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR refer Page No 2-4 of Paper Book) shows that the word “Search” has been cancelled on all the pages.

In view of above facts, it is submitted that only survey action under the provisions of section 133A was conducted and no search as contemplated in the provisions of section 132 of the act was ever conducted at the sole business premises of the appellant firm. This survey action does not entitle the AO to initiate proceedings u/s 153A.That survey u/s 133A was conducted on assessee-firm premises, which never got converted into search, supports that revenue never intended to conduct any search on assessee firm. Since no search action was initiated and conducted in the case of the assessee, the AO had no jurisdiction to issue notice and pass order u/s 153A of the Income Tax Act. c) It is further submitted that search and seizure operation on the strength of warrant of authorisation dated 18/04/2012 (Kindly refer Page No 5-7 of Paper Book) was conducted u/s 132 of the act at 2nd Floor, Deshmukh Apartment, 40 Dattatray Nagar, Nagpur which is the residential premises of partners and though the warrant of authorisation bears the name of appellant firm along with the two partners and another firm, but the premises searched is not belonging to or owned by the appellant firm. The warrant of authorisation authorizes the authorised officers named in the warrant, only to enter and search the specified building i.e. 2nd Floor, Deshmukh Apartment, 40 Dattatray Nagar, Nagpur which is the residential premises of partners and not the business premises of the appellant at 16 & 17, Medical College Road, TB Ward Chowk, Ajni, Nagpur. Thus, the only place that could have been searched on the strength of authorization was the residential premises of partners and not any other place. There is no office of firm at the residential premises of partners given in the warrant of authorisation. d) It is further submitted that when search was to be conducted on the appellant firm, warrant of authorisation (Kindly refer Page No 5-7 of Paper Book) should have enabled the search of business premises of the appellant firm. The warrant is issued only for reason, that if summons is issued to the firm to produce the books of accounts or other documents which will be useful or relevant to proceedings under the Act, it will not produce the same. There is no reference at all in the warrant of authorisation that such documents or money, bullion, Jewellery or other valuable article or thing is in possession of the appellant firm. This shows that the authorised officer had no reasons to believe and in fact he did not believe that the appellant firm was in possession of any money, valuable article etc. which represents income or property, which has not been/ would not be disclosed and hence the name of the appellant firm is

7 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR not mentioned therein. This further strengthens the fact that the department never intended to conduct any search and only survey was carried out in the case of appellant firm. e) The process of conduct of search is commenced with the entry and ingress by the authorised officer in the premises to be searched after getting the search warrant signed. No one from the Investigation Wing or search party of Income Tax Department has ever visited the business remises of assessee firm. It is further submitted that no preliminary or concluding statement under the provisions of section 132(4) of the Act of any of the partners of the assessee firm with reference to search was recorded and no Panchanama was prepared / drawn in the name of appellant firm to affect seizure of any cash, loose papers or documents etc. relating to firm was made from its business premises at Medical College Road, Ajni, so as to give an impression that any action contemplated under the provisions of section 132 of the Act was taken in the appellant’s case. Admittedly no search was conducted at the business premises of the firm. f) It has been held that mere mentioning the name of assessee in the search warrant in the absence of conduct of actual search at the premises of assessee i.e. where the assessee actually resides or is available or is normally found or belonging to assessee resulting in impounding or seizure of cash, books of accounts etc relating to assessee from the searched person cannot lead to an inevitable conclusion that a valid search was conducted in his case and that warrant of authorisation has to be executed against the assessee and considering the provisions of section 153A(1)(b) not only initiation of search is mandatory but conduct of actual search is also material and such conduct of person specific and premises specific search is sin qua non for assumption of jurisdiction u/s 153A of the act. In the present case no warrant of authorisation u/s 132(1) to enter and search the business premises owned or belonging to the appellant firm at 16 & 17, Medical College Road, TB Ward Chowk, Ajni, Nagpur has been issued or executed by the authorised officers. g) Copies of Panchnama and inventory prepared (Kindly refer Page No 14-25 of Paper Book) in the name of Mr. Chandrashekhar Mudaliar also shows warrant in his name and place of search is the residential premises of partners. The premises searched are not the premises owned or belonging to the assessee firm and hence the search conducted is invalid qua the assessee firm. While there is ample evidence to show that survey u/s 133 was carried out at the business premises of the firm, no evidence has been produced or brought on record by AO to show that any search

8 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR action u/s 132 was caried out against the appellant firm.The issue is squarely covered in favor of the assessee by the following decisions: 1) ACIT Vs M/s S.P.Cold Storage-ITA Nos 142 to 147/BLPR/2012(ITAT Raipur) 2) Regency Mahavir Properties (ITAT Mumbai) ITA No. 682 & 683/Mum/2016 3) J.M. Trading Corpn. Vs. ACIT (2008) 20 SOT 489 (ITAT Mum.) upheld by Hon’ble Bombay HC in its judgment dated 29.06.2009 in ITA No. 589/2009 and the SLP filed by the revenue against the HC judgment has been dismissed by the Hon’ble SC in SLP CC 31208/2010 on 29.10.2010 4) Unique Star Developers Vs DCIT-57ITR 0463 (ITAT Mumbai) h) It is a settled position of law, that the partnership firm in view of the provisions of section 2(7) r.w.s section 2(31) of the I.T.Act is a separate juristic legal entity distinct from its members and a search in the residential premises of the partners of the firm cannot be considered as search of partnership firm. Reliance is placed on the following decisions: 1) Tirupati Oil Corp.248ITR194(BOM HC) 2) Nenmal Parmer 195ITR0582(KAR HC) 3) Shri Govind G. Sarawagi HUF IT(SS)A No.539 and 540/Ahd/2011 i) It is further submitted that since no search was conducted on the appellant firm, no question of finding any incriminating evidence arises and no incriminating evidence seized from assessee has been brought on record. Hence the AO had no jurisdiction to assess u/s 153A and the order passed is bad in law. The Hon’ble Delhi HC in Pr. CIT v. Lata Jain reported in 384 ITR 543 &Pr.CIT V. Meeta Gutgutia Prop. Ferns N Petals-395 ITR 526held that in absence of any incriminating material found as a result of search, assumption of jurisdiction was also not in accordance with law. The SLP- 18121/2018 filed by the department in the case of Smt Meeta Gutgutia has been dismissed by Hon’ble Supreme Court. j) It is further submitted that incriminating material/ documents etc. on the basis of which assessment has been framed u/s 153A r.w.s. 143(3) for AY 2011-12& 2012-13 have been found and impounded during survey u/s 133A of the act at the business premises of the appellant firm and it is a well settled law that the same cannot be considered as relevant material for computation of income under block assessment proceedings. Reliance is placed on the following decisions: 1) G.K Senniappan 284 ITR 220 (MAD HC) 2) Ajit Kumar (2008) 300 ITR 152(MAD HC)

9 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR

Thus, at no point of time, the appellant firm, was ever subjected to search proceedings u/s 132 and the appellant firm not being a person searched, notice u/s 153A served on it was invalid and assessment orders framed u/s 143(3) r.w.s. 153A in consequence thereof for all assessment years in appeal i.e. AY 2010-11 to AY 2012-13 are therefore void ab initio, invalid & bad in law. It is therefore respectfully prayed that the order passed by AO and confirmed by Ld. CIT (A) may kindly be Quashed / cancelled.

l) It is submitted thatno material much less an incriminating material relating to appellant firm has been found during search of residential premises of partners for the year. The AO has not brought on record any specific incriminating evidence and no addition has been made on the basis of any such evidence during the year. Even otherwise, having searched the residence of the partners of the appellant firm the revenue could have initiated action against the appellant only u/s 153C, had any document / incriminating evidence pertaining to the firm were seized from the residential premises searched. Reliance is placed on the following decisions: 1) ACIT VsM/s S.P.Cold Storage (supra)(Pg No 1-12-Paper Book-Case Laws) 2) Regency Mahavir Properties (supra) ITAT Mumbai 3) Sonal Vora - IITA No 179/AHD/2018 6. Per contra, the Ld. DR strongly rebutted the arguments of the ld. Counsel for assessee by submitting that the assessment has been rightly framed under section 153A read with 143(3) of the Act. The Ld. DR submitted that section 153A speaks of imitation of search and not conduct of search. The revenue department had initiated search at the residence of the partners of the firm at 2nd Floor, Deshmukh Apartment, 40 Dattatray Nagar, Nagpur, the assessee’s name is mentioned in the warrant of authorisation and incriminating evidence was found from the residence of partners and hence it cannot be said that no search u/s 132 was

10 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR initiated in the case of assessee firm. The search initiated at the residence of partners is to be considered as search at the assessee firm and hence the AO had jurisdiction to issue notice and make assessment u/s 153A of the act. The Ld. DR thus supported the orders of the lower authorities. Further, on the legal propositions, Ld. DR has nothing to controvert except relying on the decisions of the Revenue Authorities. 7. We have carefully heard both the parties and perused the orders of the Revenue Authorities and material placed on record. The question before us in ground no.1 taken by the assessee is whether in the facts and circumstances of the case, in the absence of search being conducted at the place of the business of the assessee, any assessment can be made by issuing notice u/s.153A of the Act. We find that, in the present case the search warrant on the basis of which search has been conducted at the premises 40, Deshmukh Apartments, Dattatray Nagar bears the name of the appellant firm along with the name of partners but the premises searched does not belong to the appellant firm nor the firm was carrying on any business from the said place. The premises searched by the authorised officers is the residence of the partners and not the business place of the assessee firm. The address of the premises from where the appellant firm conducts its business as mentioned in the firm’s partnership deed, notice issued u/s 133A, return of income, all correspondences made with the department and as per IT database is 16 &17, Medical College Road, TB Ward Chowk, Ajni, Nagpur, which is not disputed. The address of the business premises of the firm is not mentioned in the search warrant. We find merit in the contention of the Ld. Counsel for assessee that the search warrant authorises the authorised officer, only to enter and search the specified building

11 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR i.e.,40, Deshmukh Apartments, Dattatray Nagar and not any other place. We also note that no statement u/s 132(4) of any of the partners with reference to search has been recorded, no seizure of any cash, documents etc was made from the appellant firm, no panchanama was drawn in the name of the firm and the panchnama drawn in the name of Partner shows that the search was conducted at the residence of the partners. Besides this, the Ld. Counsel for assessee also drew our attention to order u/s 133A(3)(ia) of the Act and the inventory (Annexure B and BA) of the books of accounts and documents etc. prepared by the authorised officer for impounding and retaining them in his custody to demonstrate that survey was conducted on 19/04/2012 at the aforesaid business premises of the assessee firm. He argued that the word search cancelled on all pages of inventory (Annexure B and BA) prepared during survey also shows that no search was conducted. The Ld. counsel for assessee therefore vehemently argued that there has never been any search conducted on the assessee firm and only survey u/s 133A was conducted. Thus, it is undisputed that the search was conducted at the residential premises of the partners at 40, Deshmukh Apartments, Dattatray Nagar and no search operation as contemplated under the provisions of section 132 was ever conducted at the sole business premises of the assessee firm at 16 &17, Medical College Road, TB Ward Chowk, Ajni, Nagpur.

12 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR 153A. (1) Notwithstanding anything contained in section 139, section 147, section 148,section 149, section-151 and section 153, in the case of a person where a search isinitiated under section 132 or books of account, other documents or any assets arerequisitioned under section 132A after the 31st day of May, 2003, the Assessing Officershall— (a) issue notice to such person requiring him to furnish within such period, as may bespecified in the notice, the return of income in respect of each assessment year falling within six assessment years [and for the relevant assessment year or years] referred toin clause (b), in the prescribed form and verified in the prescribed manner and settingforth such other particulars as may be prescribed and the provisions of this Act shall, sofar as may be, apply accordingly as if such return were a return required to be furnishedunder section 139; (b) assess or reassess the total income of six assessment years immediately precedingthe assessment year relevant to the previous year in which such search is conducted orrequisition is made. 153B. (1) Notwithstanding anything contained in section 153, the Assessing Officer shallmake an order of assessment or reassessment, — (a) in respect of each assessment year falling within six assessment years referred to inclause (b) of sub-section (1) of section 153A, within a period of twenty-one months fromthe end of the financial year in which the last of the authorisations for search undersection 132 or for requisition under section 132A was executed; (b) in respect of the assessment year relevant to the previous year in which search isconducted under section 132 or requisition is made under section 132A, within a periodof twenty-one months from the end of the financial year in which the last of theauthorisations for search under section 132 or for requisition under section 132A wasexecuted: (2) The authorisation referred to in clause (a) and clause (b) of sub-section (1) shall bedeemed to have been executed, — (a) in the case of search, on the conclusion of search as recorded in the last panchnamadrawn in relation to any person in whose case the warrant of authorisation has beenissued; or (b) in the case of requisition under section 132A, on the actual receipt of the books ofaccount or other documents or assets by the Authorised Officer. Section 132(1) 132. (1) Where the Principal Director General or Director General or Principal Director orDirector or the Principal Chief Commissioner or Chief Commissioner or PrincipalCommissioner or Commissioner or Additional Director or Additional Commissioner orJoint Director or Joint Commissioner in consequence of information in his possession, hasreason to believe that—

13 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR (a) any person to whom a summons under sub-section (1) of section 37 of the IndianIncome-tax Act, 1922 (11 of 1922), or under sub-section (1) of section 131 of this Act,or a notice under sub-section (4) of section 22 of the Indian Income-tax Act, 1922, orunder sub-section (1) of section 142 of this Act was issued to produce, or cause to beproduced, any books of account or other documents has omitted or failed to produce, orcause to be produced, such books of account or other documents as required by suchsummons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issuedwill not, or would not, produce or cause to be produced, any books of account or otherdocuments which will be useful for, or relevant to, any proceeding under the IndianIncome-tax Act, 1922 (11 of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable articleor thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be, disclosedfor the purposes of the Indian Income-tax Act, 1922 (11 of 1922), or this Act(hereinafter in this section referred to as the undisclosed income or property),

From the reading of these provisions, it is clear that section 153A(a) of the Income tax Actauthorized the Assessing Officer to issue notice in a case where search has been initiated and thus, it is only machinery section. Section 153A(b) of the Act also authorizes the Assessing Officer to assessee or reassess the income of six assessment years immediately preceding assessment years relevant to the previous year in which the search has been conducted or requisition is made. The said subsection using the term "search is conducted" had also specified assessment year for which the re-assessment proceedings are triggered after search. It is clear from the above that the provisions of section 153A of the Act come into play only after search has been conducted. The provisions of section 153B of the Act provides that authorization of warrant shall be deemed to be executed upon the conclusion of search as recorded in the last panchnama drawn in relation to the persons in whose case the warrant or authorization has been issued. So, in all the sections the term used is important that last panchnama drawn in relation to any person. Thus, in order to complete the search, there is an

14 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR initiation of proceedings u/s 132(1) of the Act, actual conduct of search in terms of search warrant issued which includes search in the premises of the assessee and other places and also the last stage panchnama which is conclusive proof of conclusion of search from which the period of limitation will be calculated as provided u/s 153B of the Act. The provisions of Act very clearly and unambiguously provide for initiation of search, conduct of search and conclusion of search and only then the Assessing Officer can assume jurisdiction u/s 153A of the Act. In the present case before us, we find that the search has been initiated in the name of the assessee firm along with names of partners appearing on the warrant of authorization issued u/s 132(1) but no search was conducted at the business premises of the assessee firm. The address mentioned in the partnership deed, notice issued u/s. 133A, the PAN, IT Data base and ITR, copies of which were filed before us, clearly prove that 40, Deshmukh Apartments, Dattatray Nagar, Nagpur where the search was conducted is not the business address of the assessee firm. The search was concluded but no panchnama was drawn in the name of the assesseefirm. Therefore, the conditions as stipulated for assuming the jurisdiction u/s. 153A, in our view, have not been satisfied. We do not agree with the contention of the Ld. CIT(A) that since, the premises belonged to the partners, search carried out at the residence of partners is a search conducted at the assessee firm. The firm is a separate taxable unit under the income tax act and in view of the Hon’ble Bombay HC decision in the case of Tirupati Oil Corporation (Supra), Karnataka High Court decision in Nenmal Parmal(Supra) and ITAT decision in Govind G. Sarawagi HUF, it cannot be said that there was any search on the assessee firm.In view of these facts, we are of the opinion that the conditions stipulated

15 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR u/s. 153A, for the issue of notice, are not satisfied. Until and unless the Assessing Officer assumes the valid jurisdiction u/s. 153A the assessment made in consequence of the notice issued u/s. 153A, in our view is invalid and void ab initio. We accordingly quash the assessment made by the Assessing Officer. 9. Now we deal with the following decisions relied upon by the Ld. Counsel for assessee:

a) The Hon’ble ITAT Raipur bench in ACIT Vs M/s S.P.Cold Storage (Supra) observed “That no search was conducted at the business premises of the assessee firm but search was conducted at the premise which happens to be the residence of the partners of the firm. Survey was conducted at the business premises of the assessee firm. This does not entitle the revenue to initiate proceedings u/s 153A. Having searched the residence of partners the revenue could have initiated action against the assessee firm only u/s 153C had any document pertaining to assessee firm were seized from the residential premises. The search conducted qua the assessee firm was not a valid search. In such cases proceedings u/s 153A are invalid”. b) The Hon’ble ITAT, Mumbai bench in the case of Regency Mahavir Properties v. ACIT (Supra) observed and held “The search has been initiated in the name of the assessee along with other assessee’s appearing on the warrant of authorization issued u/s 132(1) but it did not mention the address of the premises from where the assessee conducts business. No incriminating material relating to the assessee was found in the premises where the search was carried out. The search was concluded but no panchnama was drawn in the name of the assessee. Therefore, the conditions as stipulated for assuming the jurisdiction u/s. 153A have not been satisfied. The assessment in consequence of such notice is invalid and void ab initio”. c) The Hon’ble ITAT, Mumbai bench in the case of J.M. Trading Corpn. Vs. ACIT (Supra) held that, mere mentioning name in the warrant does not lead to a conclusion that search was conducted on the assessee and the provisions of section 153A are applicable in case a valid search is conducted against the assessee u/s 132. The decision of ITAT, has been upheld by Hon’ble Bombay HC in its judgment dated 29.06.2009 in ITA No. 589/2009 and further the SLP filed by the revenue against the judgment of Hon’ble Bombay HC has been dismissed by the Hon’ble SCin SLP CC 31208/2010 on 29.10.2010

16 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR d) The Hon’ble ITAT, Mumbai bench in the case of Unique Star Developers Vs DCIT(Supra) held “in order to initiate assessment proceedings, u/s 153A, premises of appellant had to be searched and Panchanama had to be specifically drawn in name of assessee. When name of assessee did not appear in panchanama, it could not be taken as omission on part of search party of mentioning name but it was clear proof and conclusive proof that no search was at all conducted”.

The above-mentioned decisions support the view taken by us in the preceding paragraphs. Accordingly, ground No 1 raised by the appellant for all the assessment years is allowed and we quash the assessment order passed u/s. 153A r.w.s. 143(3) of the Act.

17 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR section 153A of the act. We agree with the contention of the Ld. Counsel for the assessee that having searched at the residence of the partners of the assessee firm, the revenue could have initiated action against the assessee firm only u/s 153C and not u/s 153A, if any, incriminating material pertaining to firm was seized from the residential premises. Our view is fortified by the decision of ITAT Raipur Bench in M/s S.P.Cold Storage(Supra), ITAT Mumbai Bench in Regency Mahavir Properties (Supra) and ITAT Ahmedabad bench in Sonal Uday Vora(Supra) relied upon by the assessee firm.Thus, in our considered opinion, the revenue cannot take shelter under the provisions of section 153A for initiating action against the assessee, when we have found that no valid search has been conducted in the case of the assessee firm.

18 ITA183/NAG/2017 NEW VIRAJ HOUSING AGENCY VS ACIT , C.C. 1(1), NAGPUR Copy of the order forwarded to: 1. The Appellant- M/s New Viraj Housing Agency, Nagpur 2. The Respondent- The ACIT, Central Circle 1(1), Nagpur 3. CIT 4. The CIT(A) 5. DR, ITAT, Nagpur 6. Guard File (ITA No. 183/Nag/2017) By order, Asstt. Registrar