HIGH COURT OF ORISSA: CUTTACK I.T.A. Nos. 71, 72, 73, 74, 75, 76 & 77 of 2009 In the matter of applications under Section 260-A of the Income Tax Act, 1961. -------- Siksha “O” Anusandhan … Appellant. (Appellant in all the above appeals) -Versus- Commissioner of Income Tax, Orissa, Bhubaneswar & Ors. … Respondents. (Respondents in all the above appeals) For Petitioners : M/s. Siddhartha Ray, S.Dey, S.K. Senapati, R.K. Kar & G.N. Naik (in all the appeals) For Opp. Parties : Mr. Akhil Mohapatra, Sr. Standing Counsel for Revenue (in all the appeals) ---------- P R E S E N T: THE HONOURABLE SHRI JUSTICE B.P.DAS AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of hearing: 22.06.2010 : Date of judgment: 02.07.2010 B.N.MAHAPATRA, J All the above seven appeals have been filed by the appellant under Section 260-A of the Income Tax Act, 1961 (for short “I.T. Act, 1961”) challenging the common order dated 27.07.2009 passed by the Income Tax Appellate Tribunal, Cuttack Bench, Cuttack (for short, ‘the I.T.A.T’) in IT (SS) A Nos. 39 to 45/CTK/2008 pertaining to assessment years 2000-2001 to 2006-2007. 2. All these appeals have been admitted by this Court on the following substantial questions of law. (i) Whether in absence of warrant in the name of an assessee the search conducted in its premises is a valid search as contemplated under Section 132 of the I.T. Act, 1961? (ii) Whether initiation of a valid search as contemplated under Section 132 of the I.T. Act, 1961 in case of a person is a pre-requisite to issue notice for making assessment/reassessment under Section 153 A of the I.T. Act, 1961 in respect of such person ? (iii) Whether on the facts and circumstances of the case, the I.T.A.T. is justified in remanding the matter to the Commissioner of Income Tax (Appeal) to adjudicate on a question of law raised before it instead of deciding the issue itself? 3. Since appellants are the same and common questions of law are involved in all the appeals, they are heard together and disposed of by this common judgment. 4. The short facts leading to the present appeals are that the appellant-Siksha “O” Anusandhan (for short “the Society”) is a Society registered under the Societies Registration Act, 1860. It was created for charitable purpose to impart technical education. Accordingly, an Engineering College known as I.T.E.R. and other educational institutions have been established in Bhubaneswar. The Society has been conferred upon the status of “Deemed University” by the University Grants Commission. The appellant Society got registered under Section 12-A of the I.T. Act, 1961. The appellant has been assessed as a charitable Society by the Assessing Authority on its returned income. According to the aappellant, pursuant to two search warrants issued in the name of Dr. 2 Manoj Ranjan Nayak, search and seizure operations were carried out in the residential premises of Dr. Manoj Ranjan Nayak, the President of the Society at 195, Dharma Vihar, Khandagiri, Bhubaneswar and at 224 Dharma Vihar, Khandagiri, Bhubaneswar on 09.08.2005 and 10.08.2005. In course of search, the authorized officer seized the books of accounts, documents etc. of the appellant Society from 224, Dharma Vihar, Bhubaneswar. Pursuant to such search and seizure operations, assessment proceedings under Section 153 A of the I.T. Act, 1961 were initiated against the appellant and a tax demand of Rs.15,35,75,989/- was raised for the seven assessment years, i.e., 2000-2001 to 2006-2007. The appellant challenged the assessment orders passed under Section 153 A of the I.T. Act, 1961 by filing appeals before the Commissioner of Income Tax (Appeals) [for short, ‘CIT (A)’] and having unsuccessful before said forum, it preferred appeals before the I.T.A.T. Before the learned I.T.A.T., the appellant raised an additional ground that as no search warrant was served on the appellant, proceedings initiated under Section 153A of the I.T. Act, 1961 are not legal. The learned I.T.A.T. by the impugned order remitted the matters to the CIT (A) with a direction to first decide the additional ground raised by the assessee in accordance with law and, if required, the other grounds on merit after affording due opportunity of hearing to the assessee. 5. Mr. S. Ray, learned counsel appearing on behalf of the appellant submitted that the order passed by the learned Tribunal is 3 totally erroneous, illegal and irrational. Relying on the provisions of Section 132(1) of the I.T. Act, 1961 read with Form 45 of the Income Tax Rules, 1962 (for short “the Rules”) he argued that the main purpose of Section 132(1) of the I.T. Act, 1961 is to unearth the undisclosed income. A search operation cannot be conducted in a wild manner. Relying on the decisions of the Punjab & Haryana High Court in S.C.Sibal Vs. Commissioner of Income-Tax, Punjab & Ors., (1977) 106 ITR 102 and Manmohan Krishan Mahajan Vs. Commissioner of Income-Tax, Patiala & Ors. (1977) 107 ITR 420, he argued that in absence of proper search warrant the proceedings under Section 153A of the I.T. Act, 1961 against the assessee are invalid. It was further argued that the assessment proceedings as contemplated under Section 153 A of the I.T. Act, 1961 can only be initiated against a person in whose case search operation has been initiated under Section 132(1) of the I.T. Act, 1961. The assessment proceedings initiated and completed under Section 153 A of the I.T. Act, 1961 in absence of initiation of valid search as contemplated under Section 132 of the I.T. Act, 1961 are illegal. Placing reliance on the decision of the Delhi High Court in Ajit Jain -v- Union of India & Ors., (2000) 242 ITR 302, which has been approved by the Hon’ble Supreme Court in Union of India -vs- Ajit Jain & Anr., (2003) 260 ITR 80, it is argued that the condition precedent for making a search assessment is a valid search. The action of the Assessing Officer is without jurisdiction. In support of his contention, he also relied on the 4 decisions of the Delhi High Court in Commissioner of Income Tax Vs. M.S. Rohini S.Walia., (2007) 289 ITR 328. He further argued that the learned Tribunal has committed an error in remitting the matters to the file of the CIT (A) after perusal of the record relating to search and after being satisfied that there was no warrant in the name of the appellant-Society. In support of such contention, Mr. Ray relied upon the decision of the apex Court in National Thermal Power Corporation Ltd. Vs. Commissioner of Income-Tax, (1998) 229 ITR 383, and the decision of the Allahabad High Court in Commissioner of Income-Tax Vs. Mohd. Ayyub and Sons Agency (All.),(1992) 197 ITR 637. The learned I.T.A.T. should have decided the jurisdictional issue itself instead of remitting the matters to CIT (A) by placing reliance on the decision of the M.P. High Court in C.I.T. -v- Tollaram Hassomal, 298 ITR 22, which is not at all applicable to the present case. Hence, the order of the learned I.T.A.T. is not sustainable. 6. Per contra, Mr. A. Mohapatra, Sr. Standing Counsel appearing on behalf of the Income Tax Department supported the order of the learned I.T.A.T. It was vehemently contended that even if there is any illegality in the search warrant, the same would not invalidate the search assessment proceedings initiated under Section 153A of the I.T. Act, 1961 7. In order to decide question No.1 it is necessary to examine what is contemplated under Sections 132 of the I.T. Act, 1961. The relevant provisions of Section 132 are quoted below:- “132. Search and seizure 5 (1) Where the [Director General or Director] or the [Chief Commissioner or Commissioner] [or any such] [Joint] Director or [Joint] Commissioner as may be empowered in this behalf by the Board], in consequence of information in his possession, has reason to believe that (a) any person to whom a summons under sub- section (1) of Section 37 of the Indian Income 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 (11 of 1922), or under sub-section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or wouldn’t, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income 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 article or things 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 disclosed] for 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), [then,— (A) the [Director General or Director] or the [Chief Commissioner or Commissioner], as the case may be, may authorize any [Joint] Director, [Joint] Commissioner, [Assistant Director] [or Deputy Director] [Assistant Commissioner [or Deputy Commissioner] or Income-tax Officer], or (B) such [Joint] Director] or [Joint] Commissioner, as the case may be, may authorize any [Assistant Director] [or Deputy Director], [Assistant Commissioner [or Deputy Commissioner] or Income-tax Officer], 6 (the officer so authorized in all cases being hereinafter referred to as the authorized officer) to- (i) enter and search any [building, place, vessel, vehicle, or aircraft] where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept; (ii) break open the lock of any door, box, locker, safe almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available; [(iia) search any person who has got out of, or is about to get into, or is in the building, place, vessel, vehicle or aircraft, if the authorized officer has reason to suspect that such person has secreted about his person any such books of account, other documents, money, bullion, jewellery or other valuable article or thing;] [(iib) require any person who is found to be in possession or control of any books of account or other documents maintained in the form of electronic record as defined in clause (t) or sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000), to afford the authorized officer the necessary facility to inspect such books of account or other documents;] (iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search: [Provided that bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorized officer shall make a note or inventory of such stock-in-trade of the business;] (iv) place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom; (v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing: xxxx xxxx xxxx [(13) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizure shall apply, so far as may be, to 7 searches and seizure under sub-section (1) or sub- section (1A).] (underlined for emphasis) Section 132 prescribes that the competent authorities are empowered to permit the authorized officers to enter, search, break open, seize, place marks of identification and take other steps as contemplated under sub- clauses (i) to (v). However, such powers can be exercised against a person upon fulfillment of certain conditions. Firstly, the competent authority must have the information in its possession and, secondly, on the basis of such information it must have the reason to believe that the conditions as stipulated in sub-clauses (a),(b) and (c) of Section 132(1) of the I.T. Act, 1961 exist. Sub-clauses (a), (b) and (c) of Section 132(1) speak of any person. Search and seizure cannot be sustained unless it is clearly shown that it was done by the authority duly authorized, and all the conditions precedent in relation thereto existed. Thus, before issuance of search warrant in order to take recourse under Section 132 of the I.T. Act, 1961, the authority competent to issue search warrant must be satisfied that search under Section 132 (1) is needed in respect of a definite person. Satisfaction required under Section 132 (1) of the Act 1961 is qua the person whose name appears in the warrant of authorization. If search as contemplated under Section 132 of the I.T. Act, 1961 is conducted in the premises of a person without any warrant of authorization in the name of the person searched, or on the basis of a warrant of authorization in the name of some other persons, that would be a clear case of non-application 8 of mind of the empowered I.T. authorities and such a search cannot be held to be valid. It is so, because the belief which forms the foundation of search relates to a definite person who is to be subjected to search. If the contrary is the fact situation, the same would amount to serious lapses and would be in clear violation of the provisions contained in Section 132(1) of the I.T. Act, 1961, as it does not stand to the test of Section 132 of the I.T. Act, 1961. Therefore, the most serious content of the warrant of authorization is the name and description of the person whose premises, etc., are sought to be searched. The Punjab & Haryana High Court in Jagmohan Mahajan & Ors. vs. CIT, Punjab & Ors., (1976) 103 ITR 579, held that a search authorized in the absence of material necessary to form the requisite belief under Section 132(1) on the basis of blank warrant of authorization signed by the CIT was illegal and no order under Section 132(5) on the basis of such a search could be made. The Delhi High Court in Ajit Jain’s case (supra) held that it is axiomatic that search under Section 132 has to be a valid search. An illegal search is no search and as a necessary corollary in such a case Chapter-XIV-B would have no application. This judgment of the Delhi High Court has been upheld by the apex Court in Union of India vs. Ajit Jain & Anr., (2003) 260 ITR 80. The Delhi High Court in Commissioner of Income Tax vs. M/s. Rohini S. Walia, (2007) 289 ITR 328, held that it would be a futile exercise to entertain the appeals where 9 admittedly no search warrant was issued in case of the assessees and the Tribunal held that unless a search warrant was issued, the assessing officer could not invoke the provisions of Section 158 BC of the I.T. Act, 1961 for initiation of block assessment proceedings against the assessees. Thus, we are of the view that in absence of any search warrant in the name of an assessee, search conducted in its premises is not a valid search as contemplated under Section 132 of the I.T. Act, 1961. 8. To deal with the second question, it is also necessary to examine what is contemplated in Section 153A. The relevant provisions of Section 153A are quoted below:- “153A. Assessment in case of search or requisition 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 is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall-- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the 10 assessment year relevant to the previous year in which such search is conducted or requisition is made:” (underlined for emphasis) The provisions of Section 153A make it clear that only in case of a person where a search is initiated under Section 132 or books of account or other documents or any assets are requisitioned under Section 132A after 31st day of March, 2003, the Assessing Officer shall after issuing notice assess or reassess the total income of such person for six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition made. The legislative intent is clear from the use of the expression ‘such person’ in Clause-(a) of Section 153A. The expression clearly relates to a person in respect of whom search under Section 132 has been initiated as Section 153A itself provides. Thus to exercise powers under Section 153A in case of a person the mandatory requirement is that there must be initiation of a search as contemplated under Section 132 or requisition under Section 132A of the I.T. Act, 1961 in respect of such person. In a case, where there is no initiation of search as contemplated under Section 132, basic condition for issuance of notice under Section 153A does not exist. In order to assume jurisdiction to assess a person under Section 153A, there must be initiation of a valid search in respect of such person under Section 132 of the I.T. Act, 1961. The word ‘person’ appearing in Section 132 and in Section 153 A of the I.T. Act, 1961 is one and the same person. Thus the person, in respect of whom search under Section 132 is 11 initiated, is the same person against whom notice under Section 153A is to be issued for making assessment/reassessment under that Section. In Ajit Jain’s case (supra), the apex Court held that valid search is a prerequisite for invoking provisions of block assessment. The Bombay High Court in C.I.T. Vs. Tirupathi Oil Corporation, (2001) 248 ITR 194, held that notice under Section 158 BC cannot be issued against the firm relating to a search in case of a partner and therefore held the assessment to be bad in law. In view of the above, we are not inclined to accept the contention of Mr A. Mohapatra that even if there is any illegality in the search warrant, the same will not invalidate the search assessment proceeding initiated under Section 153A of the I.T. Act, 1961 Therefore, we are of the view that initiation of a valid search as contemplated under Section 132 of the I.T. Act, 1961 in case of a person is a prerequisite to issue notice for making assessment/reassessment under Section 153A of the I.T. Act, 1961 in respect of such person. 9. The relevant facts and circumstances giving rise to the third question are that the appellant had raised the following additional ground before the Tribunal:- “For that the proceeding under Section 153A of the I.T. Act, 1961 is not legal as there was no search warrant served on the appellant on the facts and in the circumstances of the case.” 12 The learned I.T.A.T. admitted the additional ground for hearing with the following observations:- “After hearing both the parties and going through the material available on record and the case law relied on by the learned Counsel for the assessee, we find that the additional ground taken by the assessee is legal one and goes to the root of the matter as the proceedings under Section 153A of the Act has been challenged by taking this ground. We further find that the Hon’ble apex Court in the case of NTPC Vs. CIT, 229 ITR 383 has observed as under:- “Under Section 254 of the Income-tax Act, 1961, the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, passed such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, there is no reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long as the relevant facts are on record in respect of the item. There is no reason to restrict the power of the Tribunal under Section 254 only to decide the grounds which arise from the order of the Commissioner of Income Tax (Appeals). Both the assessee as well as the department have a right to file an appeal/cross objections before the Tribunal. The Tribunal should not be prevented from considering questions of law arising in assessment proceedings, although not raised earlier. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner (Appeals) is too narrow a view to take up the powers of the Tribunal. In view of the above, the additional ground taken by the assessee is admitted for hearing.” 13 The order dated 05.05.2009 (Annexure-8) passed by the learned I.T.A.T. in I.T.A. No.71/09 reveals that the Tribunal had directed the learned D.R. to produce the records of the search to examine as to whether search warrant was issued in the name of the assessee or not, and adjourned the case to 06.05.2009. The order of the Tribunal further reveals that both parties argued at length on the applicability of the provisions of Sections 153A and 153C. Thereafter, the learned Tribunal relying on the decision of Madhya Pradesh High Court in C.I.T. Vs. Tollaram Hassomal, (2008) 298 ITR 22 MP, remitted the matter to the CIT (A) with a direction to decide first the additional ground taken by the assessee in accordance with law and, if required, the other grounds on merits after giving due opportunity of being heard to the assessee. Admittedly, the Tribunal after being satisfied that the additional ground taken by the appellant before it to be a question of law and goes to the root of the matter vide order dated 05.05.2009 (Annexure- 8) directed the learned D.R. to produce the records of search to examine as to whether search warrant was issued in the name of the assessee or not and adjourned the case to 06.05.2009. At this stage, there is no reason as to why the Tribunal being the final fact finding authority could not have recorded its finding on aforesaid vital jurisdictional issue when consciously the Tribunal called for the record of search. This action of the learned Tribunal, in our view, seems to be unjust. 14 The specific stand of the appellant is that pursuant to order dated 05.05.2009 (Annexure-8) passed by the learned I.T.A.T. directing learned D.R. to produce the records of the search to examine whether search warrant was issued in the name of the assessee, the Revenue produced the search records and the I.T.A.T. after examining the relevant