The Commissioner Of Income Tax-19 v. Dated : 15Th April, 2014

bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 5610 OF 2010 The Commissioner of Income Tax-19 … Appellant v/s Smt.Pamela Ashish Mohile … Respondent Mr.Suresh Kumar for the appellant. Mr.Deepak Tralshawalla i/by Mr.A.K.Jasani for the respondent. CORAM: S.C. DHARMADHIKARI & G.S. KULKARNI, JJ. DATED : 15TH APRIL, 2014 P. C. : 1Heard Mr.Suresh Kumar, learned counsel appearing on behalf of the appellant revenue. 2The revenue is in appeal challenging the order passed by the Commissioner of Income Tax Appellate Tribunal dated 8[th] October, 2009 in the case of Smt.Pamela Ashish Mohile. The order passed in the Income Tax Appeal (SS) No.127Mum/97 concerns a block assessment from 1986-87 and 1996-97. The assessee is a lady. Her husband's premises were searched pursuant to a search warrant. During the course of search of the husband's residential premises certain documents were seized. A panchanama was drawn on 24[th ]February, 2006. That panchanama inter alia revealed the locker keys pertaining to three lockers which are in joint names of S.K. Mohile and Ashish S. Mohile and the respondent before us. The lockers are at Bank of Baroda, Altamount Road, Kemps Corner, Mumbai. On 23[rd] February, 1996 a warrant of authorization was issued in the name of the Branch manager, Bank of Baroda to search the lockers. The argument advanced was that, in the facts and circumstances of the case and in law, the Assessing Officer had no jurisdiction to pass an assessment order in the present case under Section 143(3) read with Section 158-BC of the Income Tax Act as no search warrant was served on the respondent assessee. 3In dealing with this additional ground raised in the appeal, the Tribunal found in paragraph Nos.4 to 8 of the impugned order that once a search under Section 132 is a condition precedent for passing an order under Section 158-BC and there being no search in the case of said Pamela, the orders under Section 158-BC are non-est in law. The Bench of the Tribunal, with a view to verify the existence of authorization in the name of the assessee, directed the departmental representative to appear before it to produce the warrant of authorization in the name of the assessee and for that purpose as many as eight adjournments were given. Despite this time being granted to the departmental representative, he was unable to produce the warrant of authorization in the name of the assessee. It was argued that there was a massive restructuring of the department on 1[st] August, 2001. The Tribunal had clarified that, in the event the most relevant document pertaining to the appeal before the Tribunal is not produced, adverse inference will be drawn against the department. The request was that no such adverse inference be drawn because of the restructuring of the department. 4When this appeal was placed before the Division Bench of this Court, similar order was passed by the Division Bench on 8[th] April, 2013. That order passed by the Hon'ble the Chief Justice and Hon'ble Shri Justice M.S. Sanklecha, reads as under :- “After having heard the learned counsel for the parties for some time, in order to enable the learned counsel for the appellant revenue to produce search warrant Nos.12406 and 12420 as mentioned in paragraph 9 of the impugned judgment dated 8[th] October, 2009 of the Income Tax some time, in order to enable the learned counsel for the appellant revenue to produce search warrant Nos.12406 and 12420 as mentioned in paragraph 9 of the impugned judgment dated 8[th] October, 2009 of the Income Tax Appellate Tribunal, stand over to 24[th] April, 2013.To be heard along with ITXA No.2795 of 2009.” “After having heard the learned counsel for the parties for some time, in order to enable the learned counsel for the appellant revenue to produce search warrant Nos.12406 and 12420 as mentioned in paragraph 9 of the impugned judgment dated 8[th] October, 2009 of the Income Tax some time, in order to enable the learned counsel for the appellant revenue to produce search warrant Nos.12406 and 12420 as mentioned in paragraph 9 of the impugned judgment dated 8[th] October, 2009 of the Income Tax Appellate Tribunal, stand over to 24[th] April, 2013.To be heard along with ITXA No.2795 of 2009.” In pursuance of that order, Mr.Suresh Kumar produced a copy of the letter dated 28[th] November, 1996 from the office of the Additional Director of Income Tax (Investigation), Unit-V(2), Mumbai. The said letter indicates that the warrant of authorization was issued and search warrant No.12406 was issued in the name of the Branch Manager. In the case of search warrant No.12420 as well it was issued in the name of the Branch Manager of the Bank of Baroda. 5It is in these circumstances and the factual back ground that the Income Tax Appellate Tribunal arrived at a conclusion that the assessee before it, namely, Pamela Ashish Mohile was not searched. No warrant evidencing said search was produced. Therefore, mere presence of her name in the panchnama would not enable the revenue to undertake further exercise and as disclosed in the record. It is in these circumstances the Tribunal concluded that the search under Section 132 of the Income Tax Act is a person specific and not a premises specific. It follows that if the name of the assessee against whom the block assessment has been made, does not figure in the warrant of the authorization issued under Section 132 of the Act, the block assessment would be unauthorized. Such a finding in the given facts and circumstances and in the backdrop of several opportunities given to the revenue to produce the relevant record is a possible and plausible view. That does not raise any substantial question of law. Any larger issue or wider controversy need not be gone into in the facts peculiar to this case. The appeal is, therefore, devoid of any merits and is dismissed. 6The copy of communication from the office of the Additional Director of Income Tax (Investigation), Unit-V, Mumbai, dated 28[th ]November, 1996 is taken on record and marked “X” for identification. (G.S. KULKARNI, J.) (S.C.DHARMADHIKARI, J.)