D.b. Income Tax Appeal v. D.b. Income Tax Appeal

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPURBENCH, JAIPUR 1.D.B. Income Tax Appeal No.153/2003CIT JAIPUR v. SMT. UMLESH GOEL 2.D.B. Income Tax Appeal No.63/2004CIT JAIPUR v. MS SURBHI GOEL 3.D.B. Income Tax Appeal No.112/2004CIT JAIPUR v. MS UMLESH GOEL 4.D.B. Income Tax Appeal No.115/2004CIT v. MS SURBHI GOEL Judgment reserved on : 4[th] August, 2016Judgment pronounced on : 31[st] August, 2016 Hon'ble Mr. Justice Ajay RastogiHon'ble Mr. Justice J.K. Ranka Mr. ANUROOP SINGHI}Mr. SAURABH JAIN} counsel for appellant Mr. RAJ KUMAR YADAV, counsel for respondents Reportable By the Court(per Ranka, J.) 1.These four appeals under Section 260-A of theIncome Tax Act are directed against the order dated4.4.2003 of the Income Tax Appellate Tribunal, JaipurBench, Jaipur. It pertains to block period 1.4.1988 to23.3.1999. 2.Following questions of law were admitted by this Court :- 153/2003 “1.Whether on the facts and in thecircumstances of the case, the learned Tribunal was right and justified in holding that nolegal search has taken place in the case of theassessee under Section 132(1), as specificallythe name of the assessee was not mentioned inthe search warrant and consequently assumptionof jurisdiction under Section 158BC by the A.O.was bad in law? 2.Whether on the facts and in thecircumstances of the case, the learned Tribunalwas right and justified in coming to theconclusion that the word 'family' or 'familymembers' mentioned in the search warrant, donot cover wife and daughter of a person? 3.Whether on the facts and in thecircumstances of the case, the learned Tribunalhad power to adjudicate on the issue ofjurisdiction of the A.O. under Section 158BD,when no such issue was decided by the CIT(A)? 4.Whether on the facts and in thecircumstances of the case, the learned Tribunalwas right and justified in holding thatCIT(A)'s direction, to the A.O., to initiateaction under Section 158BD/147 was withoutauthority and CIT(A) has no power to expand thejurisdiction of the A.O.?” 63/2004 “1.Whether on the facts and in thecircumstances of the case, the learned Tribunalwas right and justified in holding that nolegal search has taken place in the case of theassessee under Section 132(1), as specificallythe name of the assessee was not mentioned inthe search warrant and consequently assumptionof jurisdiction under Section 158BC by the A.O.was bad in law? 2.Whether on the facts and in thecircumstances of the case and in law, theI.T.A.T. was right and justified in upholdingthe order of C.I.T.(A) by which the entiresearch proceedings against the assessee wasannulled and thus, providing a relief ofRs.41,25,500/- to the assessee? 3.Whether on the facts and in thecircumstances of the case, the learned Tribunalwas right and justified in coming to theconclusion that the word 'family' or 'familymembers' mentioned in the search warrant, donot cover wife and daughter of a person? 4.Whether on the facts and in thecircumstances of the case, the learned Tribunalhad power to adjudicate on the issue ofjurisdiction of the A.O. Under Section 158BD, when no such issue was decided by the CIT(A)? 5.Whether on the facts and in thecircumstances of the case, the learned Tribunalwas right and justified in holding thatCIT(A)'s direction, to the A.O., to initiateaction under Section 158BD/147 was withoutauthority and CIT(A) has no power to expand thejurisdiction of the A.O.? 6.Whether the findings and conclusion of thelearned Tribunal are perverse and contrary tothe fact and law?” 112/2004 “1.Whether on the facts and in thecircumstances of the case, the learned Tribunalwas right and justified in holding that theCIT(A) had no power to expand the jurisdictionof the A.O. by directing him to takeappropriate action under Section 158BD /Section 147 of the I.T. Act, 1961? when no such issue was decided by the CIT(A)? 5.Whether on the facts and in thecircumstances of the case, the learned Tribunalwas right and justified in holding thatCIT(A)'s direction, to the A.O., to initiateaction under Section 158BD/147 was withoutauthority and CIT(A) has no power to expand thejurisdiction of the A.O.? 6.Whether the findings and conclusion of thelearned Tribunal are perverse and contrary tothe fact and law?” 112/2004 “1.Whether on the facts and in thecircumstances of the case, the learned Tribunalwas right and justified in holding that theCIT(A) had no power to expand the jurisdictionof the A.O. by directing him to takeappropriate action under Section 158BD /Section 147 of the I.T. Act, 1961? 2.Whether on the facts and in thecircumstances of the case and in law, theC.I.T(A) can direct the A.O. to initiate actionagainst the assessee under Section 158BD/147 ofthe I.T. Act, 1961, when initially the actionwas taken under Section 158BC, by the AssessingOfficer? 3.Whether the findings and conclusion of thelearned Tribunal are perverse and contrary tothe fact and untenable in the eye of law?” 115/2004 “1.Whether on the facts and in thecircumstances of the case, the learned Tribunalwas right and justified in holding that theCIT(A) had no power to expand the jurisdictionof the A.O. by directing him to takeappropriate action under Section 158BD /Section 147 of the I.T. Act, 1961? 2.Whether on the facts and in thecircumstances of the case and in law, theC.I.T(A) can direct the A.O. to initiate actionagainst the assessee under Section 158BD/147 ofthe I.T. Act, 1961, when initially the actionwas taken under Section 158BC, by the AssessingOfficer? 3.Whether the findings and conclusion of thelearned Tribunal are perverse and contrary tothe fact and untenable in the eye of law?” Since all the aforesaid appeals are admitted on more or less identical questions of law, for thesake of convenience and with the consent of parties,they are being decided by this common order. 4.The brief facts noticed for disposal of theseappeals are that a search and seizure operation underSection 132(1) of the Act was carried out on 23.3.1999and onwards in the case of O.P. Goyal, his two sonsAnant Goyal and Sumant Goyal, at their residentialpremises situate at D-216 A, Bhaskar Marg, Bani Park,Jaipur, and during the course of search incriminatingdocuments, cash, gold ornaments, FDRs, shares &debentures were found by the Authorised Officers andsuch material were seized and taken in possession bythe Authorised Officers. A simultaneous search wascarried out at Belgaon (Karnataka) by the DDIT(Investigation), in the case of Sumant Goyal who isreported to be residing there. The search concluded on11.5.1999. It transpires that insofar as O.P. Goyaland Anant Goyal are concerned, who are the heads of thefamily and in whose case panchnama for search operationwas drawn, have preferred to approach the SettlementCommission, New Delhi, in terms of provisions ofSection 245-C of the Act, to settle their cases. Onperusal of the Assessment Order, it is noticed that thepresent assessees happen to be the wife and daughter ofAnant Goyal. 5.The AO issued notice under Section 158-BC ofthe Act requiring the assessees to file return of 5.The AO issued notice under Section 158-BC ofthe Act requiring the assessees to file return of income for the block period 1.4.1989 to 23.3.2000.There appeared to be some error in the initial notice,therefore, revised notice was issued. However, boththe assessees filed their returns under protest, forthe block period declaring total undisclosed income atNIL, inter alia, contending before the AO that theprovisions of Section 158-BC of the Act areinapplicable as there was no warrant of authorisationagainst the present assessee under Section 132(1),therefore, the notice itself was bad, and raisedseveral other grounds. However, the AO held that thenotice issued under Section 158-BC is lawful in thecase of assessees as a search under Section 132(1) hasbeen conducted in their case along with that of O.P.Goyal and Anant Goyal and family members and the AO wasof the opinion that when the warrant states O.P. Goyal,Anant Goyal and family members and since the assesseesare members of the family (wife and daughter), they areautomatically covered by the authorisation and thus theAO was well justified in proceeding ahead in issuingthe notice and to proceed ahead for assessment.Further proceedings culminated into enquiry, however,the AO despite of serious objections having been raisedabout jurisdiction and otherwise, proceeded to assessand accordingly passed the Assessment Order resultinginto assessing undisclosed income in the case of Ms.Umlesh Goyal at Rs.58,83,500/- and in the case of Ms.Surbhi Goyal at Rs.41,25,500/-. 6.In appeals said Assessment Order was assailed before the Commissioner of Income Tax (Appeals). TheCIT(A) called for Form No.45 which is a warrant andtook into consideration the fact that it was simplymentioned as O.P. Goyal, Mrs. Goyal and family, AK, SKGoyal and later-on it was mentioned as O.P. Goyal andfamily, Anant Goyal and all family members, SumantGoyal. The CIT(A) was satisfied with the explanationand contentions raised by the assessees and held thatsince the search warrant itself did not indicate namesof the assessees specifically, the AO was precludedfrom proceeding ahead with the assessment of theassessees under Section 158-BC, and thus annulled theassessment made by the AO. 7.Dissatisfied with the annulling of theassessment, while the Revenue preferred appeal beforethe Tribunal, the assessees also preferred cross-objection. The Tribunal also went into the issue andupheld the finding of the CIT(A), who had annulled theassessment proceedings. 8.Learned counsel for the Revenue contended thatthe AO was well within its domain and had jurisdictionto have issued notice under Section 158-BC.Admittedly, O.P. Goyal, Anant Goyal & Sumant Goyal hadmoved before the Settlement Commission and indeed theAO could not have taken any action against them butwhen the warrant did mention to cover “family” thatshould normally mean the family members of O.P. Goyal,Anant Goyal & Sumant Goyal that includes their spouse and children under the warrant issued for authorisingsearch and seizure operation. 8.Learned counsel for the Revenue contended thatthe AO was well within its domain and had jurisdictionto have issued notice under Section 158-BC.Admittedly, O.P. Goyal, Anant Goyal & Sumant Goyal hadmoved before the Settlement Commission and indeed theAO could not have taken any action against them butwhen the warrant did mention to cover “family” thatshould normally mean the family members of O.P. Goyal,Anant Goyal & Sumant Goyal that includes their spouse and children under the warrant issued for authorisingsearch and seizure operation. 9.Learned counsel further contended that thesearch resulted into undisclosed assets, investment invarious immovable properties which were foundunrecorded so also jewellery, cash, FDRs etc. andnaturally the AO was within his rights to assess suchundisclosed income at-least pertaining to the assesseesand, therefore, the notice under Section 158-BC wasjust and proper. He contended that assessment couldnot have been annulled as has been done by the CIT(A)as well as upheld by the Tribunal. He further contendedthat before the CIT(A) as well as the Tribunal, theassessees did not produce any material that O.P. Goyal,Anant Goyal and Sumant Goyal including other sisterconcerns have approached before the SettlementCommission and the terms on which they proposed tosettle their cases and only such matters where theassessees were found with undisclosed income, the AOproceeded to move ahead and framed assessment. He thuscontended that the order of the Tribunal is required tobe reversed. 10.Per contra, learned counsel for the assesseecontended that search and seizure operation is a veryserious matter and invades privacy of persons andunless there is a specific warrant of authorisation,the Revenue could not have proceeded to issue noticeunder Section 158-BC which was ab initio void and has rightly been annulled by the CIT(A) and upheld by theTribunal. He contended that under the Act, “family” hasnot been defined but that does not mean that in searchproceedings “family” would cover the assessees beingwife and daughter. He also contended that under Section158-BC the AO could not have proceeded ahead for theblock period and contended that Section 158-BD waslater-on introduced from 1.6.2002 to confer right onthe AO under such circumstances, whereas the searchbeing prior to 1.6.2002 it was not applicable and theAO could not have proceeded under Section 158-BC. Herelied on ITO, Special Investigation Circle v. SethBrothers and Others [1969] 74 ITR 836 (SC), and PooranMal v. Director of Inspection (Investigation), Income-Tax [1974] 93 ITR 505 (SC). 11.We have considered the arguments advanced bythe learned counsel for parties and have perused thematerial on record including the impugned order. 12.It would be appropriate to quote Section132(1), Section 158-BC, and Section 158-BD, which readsad infra :- “132(1)Where the [Director General orDirector] or the [Chief Commissioner orCommissioner] [or any such [Deputy Director] or[Deputy] Commissioner as may be empowered inthis behalf by the Board], in consequence ofinformation in his possession, has reason tobelieve that-Director] or the [Chief Commissioner orCommissioner] [or any such [Deputy Director] or[Deputy] Commissioner as may be empowered inthis behalf by the Board], in consequence ofinformation in his possession, has reason tobelieve that- (a) any person to whom a summons under sub-section (1) of section 37 of the IndianIncome-tax Act, 1922 (11 of 1922), or undersub-section (1) of section 131 of this Act, ora notice under sub-section (4) of section 22of the Indian Income-tax Act, 1922, or undersub-section (1) of section 142 of this Act wassection (1) of section 37 of the IndianIncome-tax Act, 1922 (11 of 1922), or undersub-section (1) of section 131 of this Act, ora notice under sub-section (4) of section 22of the Indian Income-tax Act, 1922, or undersub-section (1) of section 142 of this Act was (a) any person to whom a summons under sub-section (1) of section 37 of the IndianIncome-tax Act, 1922 (11 of 1922), or undersub-section (1) of section 131 of this Act, ora notice under sub-section (4) of section 22of the Indian Income-tax Act, 1922, or undersub-section (1) of section 142 of this Act wassection (1) of section 37 of the IndianIncome-tax Act, 1922 (11 of 1922), or undersub-section (1) of section 131 of this Act, ora notice under sub-section (4) of section 22of the Indian Income-tax Act, 1922, or undersub-section (1) of section 142 of this Act was issued to produce, or cause to be produced,any books of account or other documents hasomitted or failed to produce, or cause to beproduced, such books of account or otherdocuments as required by such summons ornotice, or (b) any person to whom a summons or notice asaforesaid has been or might be issued willnot, or would not, produce or cause to beproduced, any books of account or otherdocuments which will be useful for, orrelevant to, any proceeding under the IndianIncome-tax Act, 1922 (11 of 1922), or underthis Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery orother 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 thecase may be, may authorise any [DeputyDirector], [Deputy] Commissioner, [AssistantDirector] or [Assistant Commissioner or Income-tax Officer] (B) such [Deputy Director] or [Deputy]Commissioner, as the case may be, may authoriseany[AssistantDirector],[AssistantCommissioner or Income-tax Officer], (the officer so authorised in all cases beinghereinafter referred to as the authorised officer)to- (i) enter and search any [building, place,vessel, vehicle or aircraft] where he has reasonto suspect that such books of account, otherdocuments, money, bullion, jewellery or othervaluable article or thing are kept; (ii) break open the lock of any door, box,locker, safe, almirah or other receptacle forexercising the powers conferred by clause (i)where the keys thereof are not available; (iia) search any person who has got out of, oris about to get into, or is in, the building, place, vessel, vehicle or aircraft, if theauthorised officer has reason to suspect thatsuch person has secreted about his person anysuch books of account, other documents, money,bullion, jewellery or other valuable article orthing;] (iii) seize any such books of account, otherdocuments, money, bullion, jewellery or othervaluable article or thing found as a result ofsuch search; (iv) place marks of identification on any booksof account or other documents or make or causeto be made extracts or copies therefrom; (v) make a note or an inventory of any suchmoney, bullion, jewellery or other valuablearticle or thing: Provided that where any building, place, vessel,vehicle or aircraft referred to in clause (i) iswithin the area of jurisdiction of any [ChiefCommissioner or Commissioner], but such [ChiefCommissioner or Commissioner], has no jurisdictionover the person referred to in clause (a) orclause (b) or clause (c), then, notwithstandinganything contained in section [120], it shall becompetent for him to exercise the powers underthis sub-section in all cases whre he has reasonto believe that any delay in getting theauthorisation from the [Chief Commissioner orCommissioner] having jurisdiction over such personmay be prejudicial to the interests of therevenue:] Provided that where any building, place, vessel,vehicle or aircraft referred to in clause (i) iswithin the area of jurisdiction of any [ChiefCommissioner or Commissioner], but such [ChiefCommissioner or Commissioner], has no jurisdictionover the person referred to in clause (a) orclause (b) or clause (c), then, notwithstandinganything contained in section [120], it shall becompetent for him to exercise the powers underthis sub-section in all cases whre he has reasonto believe that any delay in getting theauthorisation from the [Chief Commissioner orCommissioner] having jurisdiction over such personmay be prejudicial to the interests of therevenue:] Provided further that where it is not possible orpracticable to take physical possession of anyvaluable article or thing and remove it to a safeplace due to its volume, weight or other physicalcharacteristics or due to its being of a dangerousnature, the authorised officer may serve an orderon the owner or the person who is in immediatepossession or control thereof that he shall notremove, part with or otherwise deal with it,except with the previous permission of suchauthorised officer and such action of theauthorised officer shall be deemed to be seizureof such valuable article or thing under clause(iii).] -158BC. Where any search has been conducted undersection 132 or books of account, other documents,or assets are requisitioned under section 132A, inthe case of any person, then,- (a) the Assessing Officer shall- (i) in respect of search initiated or books ofaccount or other documents or any assetsrequisitioned after the 30[th] day of June,1995, butbefore the 1[st] day of January, 1997 serve a noticeto such person requiring him to furnish withinsuch time not being less than fifteen days; (ii) in respect of search initiated or books ofaccount or other documents or any assetsrequisitioned on or after the 1[st] day of January,1997, serve a notice to such person requiring himto furnish within such time not being less thanfifteen days but not more than forty-five days, as may be specified in the notice a return in theprescribed form and verified in the same manner asa return under clause (i) of sub-section (1) ofsection 142, setting forth his total incomeincluding the undisclosed income for the blockperiod: Provided that no notice under section 148 isrequired to be issued for the purpose ofproceeding under this Chapter; Provided further that a person who has furnished areturn under this clause shall not be entitled tofile a revised return;] (b) the Assessing Officer shall proceed todetermine the undisclosed income of the blockperiod in the manner laid down in section 158BBand the provisions of section 142, sub-sections(2) and (3) of section 143 [section 144 andsection 145] shall, so far as may be, apply; (c) the Asessing Officer, on determination of theundisclosed income of the block period inaccordance with this Chapter, shall pass an orderof assessment and determine the tax payable by himon the basis of such assessment; [(d) the assets seized under section 132 orrequisitioned under section 132A shall be dealtwith in accordance with the provisions of section132B.] 158BDWhere the Assessing Officer is satisfiedthat any undisclosed income belongs to any person,other than the person with respect to whom searchwas made under section 132 or whose books ofaccount or other documents or any asset wererequisitioned under section 132A, then, the booksof account, other documents or assets seized orrequisitioned shall be handed over to theAssessing Officer having jurisdiction over suchother person and that Assessing Officer shallproceed [under section 158BC] (inserted by the Finance Act 2002, w.e.f. 1.6.2002) against suchother person and the provisions of this Chaptershall apply accordingly.” 158BDWhere the Assessing Officer is satisfiedthat any undisclosed income belongs to any person,other than the person with respect to whom searchwas made under section 132 or whose books ofaccount or other documents or any asset wererequisitioned under section 132A, then, the booksof account, other documents or assets seized orrequisitioned shall be handed over to theAssessing Officer having jurisdiction over suchother person and that Assessing Officer shallproceed [under section 158BC] (inserted by the Finance Act 2002, w.e.f. 1.6.2002) against suchother person and the provisions of this Chaptershall apply accordingly.” 13.On analysing the provisions of Section 132(1)read with Section 158-BC and 158-BD, while Section132(1) authorises to carry out search and seizureoperation where the Revenue comes into possession ofinformation that an assessee may be evading tax or hasreason to suspect that a person has money, bullion andjewellery and other valuable articles or things, booksof account etc. which does not depict true income, thena search is necessitated or got conducted. 14.Search and seizure are drastic provisions anddoes not confer unbridled power to the Revenue Officer.The Revenue must have in consequence of informationreason to believe that statutory conditions for theexercise of power to order search exist. The CompetentAuthority, namely the Commissioner or the Director ofInspection, is supposed to record reason for thebelief. Search and seizure under Section 132 of theAct, have a serious invasion upon the right, privacyand freedom of tax payer, it presupposes that powershave to be exercised strictly in accordance with lawand in fulfillment of the object & purport of the Act. 15.The right of privacy has been held to befundamental rights of citizens being integral part ofArt. 21 of the Constitution of India, and thatcitizen's right of privacy is not likely to bedisturbed. The power of search and seizure under the provisions of the Act should be exercised only whenthere is sufficient material in possession of thecompetent authority on the basis of which it can havereasons to believe that there had been assets whichcould not be disclosed for the purposes of assessmentunder the Act. 15.1Provision of Section 158-BC is attracted“where any search has been conducted under Section 132in the case of any person”. In our view from thesewords it should statutorily mandate that search shouldhave been carried out under Section 132(1) in the nameof a person before invoking the provision of Section158-BC. “Person” should normally mean name depicted inthe warrant of authorisation, and the Authorityauthorising a search has to have information in hispossession in respect of a person and such a personshould be specifically named in the search warrant.Though “family” is not defined under the Income Tax Actbut could not be stretched to cover all the familymembers, namely wife, daughter, children etc. Underthe Income Tax Act “Person” has been defined in Section2(31) which reads thus :- “Person” includes -(i) an individual; (ii) a Hindu undivided family;” (iii) to (vii) xxx xxx xxx 15.2 All the family members are separate assessable legal entities under the Act and in a casewhere search warrant has been issued in the name ofO.P. Goyal and family, in our view it cannot be stretched to cover all the family members, namelyspouse and children. It has to be in the name ofspecific person to initiate proceedings. 16.The CIT(A) has reproduced copy of warrant inForm No.45 which reads ad infra :- “Person” includes -(i) an individual; (ii) a Hindu undivided family;” (iii) to (vii) xxx xxx xxx 15.2 All the family members are separate assessable legal entities under the Act and in a casewhere search warrant has been issued in the name ofO.P. Goyal and family, in our view it cannot be stretched to cover all the family members, namelyspouse and children. It has to be in the name ofspecific person to initiate proceedings. 16.The CIT(A) has reproduced copy of warrant inForm No.45 which reads ad infra :- … “..That Form No.45, inter alia, includes thefollowing portions:-Whereas information has been laid before me andon the consideration thereof I have reason tobelieve that -xxxxxxxxxxxxIf a summons under sub-section (1) of section37 of the Indian Income-tax Act, 1922, or undersub-section (1) of section 131` of the Income-tax Act, 1961, or a notice under sub-section(4) of section 22 of the Indian Income-tax Act,1922, or under sub-section (1) of section 142of the Income-tax Act, 1961], is issued to Mr.O.P. Goyal, Mrs. Goyal and family, AK, SK Goyal[name of the person] to produce, or cause to beproduced, books of account or other documentswhich will be useful for, or relevant to,proceedings under the Indian Income-tax Act,1922, or under the Income-tax Act, 1961, hewould not produce, or cause to be produced,such books of account or other documetns asrequired by such summons or notice; Sarvashri/Shri/Shrimati OP Goyal and family,ANANT Goyal and all family members, SumantGoyalare/is/in possession of any money,bullion, jewellery or other valuable article orthing and such money, bullion, jewellery orother valuable article or thing representseitehr wholly or partly income or propertywhich has not been, or would not be, disclosedfor the purposes of the Indian Income-tax Act,1922, or the Income-tax Act, 1961, And whereas I have reason to suspect that suchbooks of account, other documents, money,bullion, jewellery or other valuable articlesor things have been kept and are to be found inE-216A Bhaskar Marg, Bani Park, Jaipur (specifyparticulars of the building / place / vessel /vehicle / aircraft).” 16.1The Tribunal, in our view, has come to acorrect conclusion that O.P. Goyal and family, AnantGoyal and family, all family members, Sumant Goyal, will not cover the assessees, namely Ms. Umlesh Goyaland Ms. Surbhi Goyal, wife and daughter of Anant Goyal,so as to confer issuance of notice under Section 158-BC, and the Revenue cannot even remotely, cover femalemembers “in family” insofar as proceedings underSection 158-BC or Income-Tax Act is concerned thoughfor all other purposes wife and daughter will always bepart of family and would certainly cover them to bepart of Shri O.P. Goyal or/and Shri Anant Goyal.Therefore, in our view the AO had no valid jurisdictionunder Section 158-BC to have issued notice and then toproceed ahead in passing an order under Section 158-BCof the Act. We fail to appreciate the reasoning of theRevenue in extending the word “family” to cover allfamily members when all are distinct and separateentities. 16.2We have reproduced Form No.45 dated23.3.1999 (supra) which is a warrant of authorisationunder Section 132 of the Act read with Rule 112(1) ofthe Income Tax Rules, and perusal of the warrantclearly shows that the names of Ms. Umlesh Goyal andMs. Surbhi Goyal, has not been written in the warrantof authorisation. Thus, when names of the two assesseesherein does not find mention in the warrant ofauthorisation, the AO has no jurisdiction to issuenotice under Section 158-BC, and the issuance of noticewas illegal and has rightly been annulled by the CIT(A)and confirmed by the Tribunal. 16.2We have reproduced Form No.45 dated23.3.1999 (supra) which is a warrant of authorisationunder Section 132 of the Act read with Rule 112(1) ofthe Income Tax Rules, and perusal of the warrantclearly shows that the names of Ms. Umlesh Goyal andMs. Surbhi Goyal, has not been written in the warrantof authorisation. Thus, when names of the two assesseesherein does not find mention in the warrant ofauthorisation, the AO has no jurisdiction to issuenotice under Section 158-BC, and the issuance of noticewas illegal and has rightly been annulled by the CIT(A)and confirmed by the Tribunal. 16.3Since by the exercise of the power aserious invasion is made upon the rights, privacy andfreedom of the taxpayer, the power must be exercisedstrictly in accordance with law and only for thepurposes for which the law authorises it to beexercised. If the action of the officer issuing theauthorisation or of the designated officer ischallenged, the officer concerned must satisfy thecourt about the correctness of his action. Therefore,in our considered view a search under Section 132(1)has to be “person specific”. The Authority authorisingsearch has to have information in his possession inrespect of a person and such a person should bespecifically named in search warrant and since names ofthe assessees having not figured in the authorisationof warrant as having been proved on the basis of Form45 which has been reproduced by us in para 16hereinbefore, the AO has exceeded its jurisdiction inissuing the notice under Section 158-BC and initiationof the proceedings being invalid, all subsequent actionof A.O. including order of assessment is notsustainable in law. 16.4We need not go into the issue aboutissuance of notice under Section 158-BD instead ofSection 158-BC particularly in view of the fact thatlearned counsel for the Revenue fairly conceded thatSection 158-BD was not in existence at the time whenthe search on 23.3.1999 was conducted and the same wasinserted with effect from 1.6.2002. After at-least 1.6.2002 an AO does get a right to assess a person, ifsatisfied on the material found that undisclosed incomebelongs to any person other than even the personsearched. 16.5For the reasons assigned and ourobservation that when a search action under Section132(1) has to be “person specific” & when admittedlythe names of the present assessees did not figure inthe warrant, we hold the AO had committed an apparenterror to assess the assessees. Accordingly, we answerthe question of law in favour of the assessee andagainst the Revenue, with no order as to costs. (J.K. Ranka) J. (Ajay Rastogi) J. db11-14