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IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Ajay Rastogi, J.K. Ranka, JJ.
CIT Jaipur - Appellant
Versus
Umlesh Goel & Ors. - Respondents
Income Tax Appeal Nos. 153 of 2003; 63, 112 & 115 of 2004
Decided On : 31-08-2016
Constitution of India – Article 21 – Income-tax Act, 1922 – Section 260, 132, 158, 147, 22, 142, 131, 22 – Competent Authority – Unbridled Power – During course of search incriminating documents, cash, gold ornaments, FDRs, shares & debentures were found by Authorised Officers and such material were seized and taken in possession by Authorised Officers. A simultaneous search was carried out by DDIT case who is reported to be residing there search concluded – It transpires that insofar are concerned, who are heads of family and in whose case panchnama for search operation was drawn have preferred to approach Settlement Commission in terms of provisions to settle their cases. On perusal of Assessment Order, it is noticed that the present assessment happen to be wife and daughter– Held, Law authorises it to be exercised action of officer issuing authorisation or of designated officer is challenged officer concerned must satisfy court about correctness of his action – Court considered search under Section 132(1) has to be person specific – Authority authorising search has to have information in his possession in respect of a person and such a person should be specifically named in search warrant and since names of assessees having not figured in authorisation of warrant as having been proved on basis of Form 45 which has been reproduced by us has exceeded its jurisdiction in issuing notice under Section 158-BC and initiation of proceedings being invalid all subsequent action of A.O. including order of assessment is not sustainable in law – Appeal is disposed.
J.K. Ranka, J.
These four appeals under Section 260-A of the Income Tax Act are directed against the order dated 4.4.2003 of the Income Tax Appellate Tribunal, Jaipur Bench, Jaipur. It pertains to block period 1.4.1988 to 23.3.1999.
2. Following questions of law were admitted by this Court 153 of 2003
"1. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in holding that no legal search has taken place in the case of the assessee under Section 132(1), as specifically the name of the assessee was not mentioned in the search warrant and consequently assumption of jurisdiction under Section 158BC by the A.O. was bad in law?
2. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in coming to the conclusion that the word 'family' or 'family members' mentioned in the search warrant, do not cover wife and daughter of a person?
3. Whether on the facts and in the circumstances of the case, the learned Tribunal had power to adjudicate on the issue of jurisdiction of the A.O. under Section 158BD, when no such issue was decided by the CIT(A)?
4. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in holding that CIT(A)'s direction, to the A.O., to initiate action under Section 158BD/147 was without authority and CIT(A) has no power to expand the jurisdiction of the A.O.?"
I.T.A. No. 63 of 2004
"1. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in holding that no legal search has taken place in the case of the assessee under Section 132(1), as specifically the name of the assessee was not mentioned in the search warrant and consequently assumption of jurisdiction under Section 158BC by the A.O. was bad in law?
2. Whether on the facts and in the circumstances of the case and in law, the I.T.A.T. was right and justified in upholding the order of C.I.T.(A) by which the entire search proceedings against the assessee was annulled and thus, providing a relief of Rs.41,25,500/- to the assessee?
3. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in coming to the conclusion that the word 'family' or 'family members' mentioned in the search warrant, do not cover wife and daughter of a person?
4. Whether on the facts and in the circumstances of the case, the learned Tribunal had power to adjudicate on the issue of jurisdiction of the A.O. Under Section 158BD, when no such issue was decided by the CIT(A)?
5. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in holding that CIT(A)'s direction, to the A.O., to initiate action under Section 158BD/147 was without authority and CIT(A) has no power to expand the jurisdiction of the A.O.?
6. Whether the findings and conclusion of the learned Tribunal are perverse and contrary to the fact and law?"
I.T.A. No. 112 of 2004
"1. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in holding that the CIT(A) had no power to expand the jurisdiction of the A.O. by directing him to take appropriate action under Section 158BD/Section 147 of the I.T. Act, 1961?
2. Whether on the facts and in the circumstances of the case and in law, the C.I.T(A) can direct the A.O. to initiate action against the assessee under Section 158BD/147 of the I.T. Act, 1961, when initially the action was taken under Section 158BC, by the Assessing Officer?
3. Whether the findings and conclusion of the learned Tribunal are perverse and contrary to the fact and untenable in the eye of law?"
I.T.A. No. 115 of 2004
"1. Whether on the facts and in the circumstances of the case, the learned Tribunal was right and justified in holding that the CIT(A) had no power to expand the jurisdiction of the A.O. by directing him to take appropriate action under Section 158BD/Section 147 of the I.T. Act
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