AFTERMATH OF SURVEY & SEARCH

BY CA SUNIL H. TALATIM.COM., L.L.B., FCA.,PAST PRESIDENT OF ICAI

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1. Important points to be considered at the commencement of Search

2. Statements recorded during search / post search Action

3. Confessions in statements

4. Retraction of Confessions in Statements

5. Imposition / Revocation of Prohibitory Orders

6. Other Aspects Relating to Search and Seizure

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Important points to be considered at commencement of search: See that the warrant is duly signed and stamped Verify the identity of each member of the search party Carry out personal search of all members of the search party (to guard against ‘Planting’) Insist upon personal search of ladies by ladies only Have two witnesses (Panchas) (Refer Rule 112 (6) and (7))

(Refer: 208 ITR (St.) 5)

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Process of Search: Verify name and address mentioned in search warrant

Ensure that only officers authorised for the purpose come into the premises being searched

Authorised officer can ask for any other officers for assistance after complying with procedure but statements can be recorded only by the authorised officer.

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Precautions to be taken with reference to Search Warrant:1. There may be a situation where in the same premises two or more persons have similar names as mentioned in Search Warrant. e.g. Search Warrant is issued in the name of Mr.

S. J. Patel living in Flat no. 109 of a building and Income Tax Department searched Flat No. 78 of another Mr. S. J. Patel of the same building. In this case Department has no jurisdiction to search Flat no. 78.

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Sl. No. Subject What to do and Why ?

1 Be Vigilant • While attending to and serving the large search team be careful and vigilant.

2 Call your Doctor

• Assessee may call medical practitioner if he is not well or an emergency.

3 Call your Key Personnel

• Assessee may seek permission to call his key personnel to assist him during the course of search.

4 Have medicines in time

• Yes

5 Call your Counsel

• Assessee may call his legal advisor during the search. However, at initial stage of search , presence of counsel is not allowed because of the fact that the search party is fact finding authority.

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Sl. No. Subject What to do and Why ?

6 Co-operate • Fully cooperate with search party and let them do their job

7 Records on Computer

• Provide all necessary facilities to inspect and copy records• Call the concerned person

8 Be assertive • Explain the facts and circumstances assertively, but not aggressively

• Don’t loose patience• If not 100% certain than tell that “we shall reply after

accessing data.• Remain calm, cool and pleasant• Do not sign statement which you have not given

9 Don’t react but respond

• Be receptive• Keep track of your reactions and even body language• Attack the problem, not the officer

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Sl. No.

Subject What to do and why?

10 Whether surrender is needed?

• It is strategic decision and depends upon facts and circumstances of each case

• It can be done till the last warrant is executed and the sealed premises, locker etc. are opened.

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Statements recorded during search / post search Action :1.Evidentiary Value of a Statement recorded u/s 132(4) at an assessee’s premises subjected to search

2.Evidentiary Value of a Statement recorded u/s 133A at the assessee’s other premises subjected to Survey (simultaneously with Search at the other premises)

3.Importance of Disclosing / Substantiating the manner of earning undisclosed income - with reference to :

(a) Assessment Proceedings (b) Penalty Proceedings(c) Application for Settlement before Settlement Commission

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Statement Recorded u/s 132(4):

Statement u/s 132(4) is recorded on oath and its evidentiary value is high and it can be used in any proceedings under the Act Investigating officer normally puts questions in order to

gain support for the ‘findings’ in search;

Correct facts must be stated or time may be sought Such examination may be in respect of all matters relevant for investigation connected with any proceeding under the I. T. Act Recording of statement is not a memory test

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Statement Recorded u/s 132(4):

Vide Instruction F. No. 286/2/2003-IT (Inv).II dated 10/03/03, CBDT has advised search parties not to obtain confessions by adopting coercive means. However, in practice, in almost all the cases search parties insist upon getting confessions

Statements must be availed as an opportunity to:(a) explain disclosed assets to avoid seizure(b) avail benefits of immunity from penalty

Whether practice of disclosing income in the hands of group or individual person is advisable – it depends upon facts of each case

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Sl. No. Subject What to do and why?

1 Statement of oath • It is a double edged weapon, if admitted on the basis of evidence

2 Tips and Traps • Understand the queries carefully• Seek clarity by asking counter questions• Don’t answer the questions recklessly – in a rash manner.• Take it as an opportunity explaining several items of

assets found during the search and not as a trap

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Sl. No. Subject What to do and why?

2 (ctd..) Important Points

• Take help of the books of account and other documents and give all the possible information, which is readily available

• If it is not possible to remember certain facts with accuracy, particularly those of several past years, but NEVER give inaccurate detail. Just tell I should refer and tell you.

3 Take rest • Assessee may insist that he will give statement only after taking proper rest (say till early hours of the next day). One should not get nervous.

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Sl. No. Subject What to do and Why ?

4 Note down points

• Note the proceedings, questions and answers at the time of recording of a statement

5 Last question in the statement

“Do you want to say Anything ?”

• Say everything you consider necessary e.g., object of any books of account, documents, assets etc are brought from other places

• Your request to call your accountant, computer operator was not acceded

• The facts which are not brought on record inspite of your explaining the same, may be stated correctly in this reply.

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Sl. No. Subject What to do and Why ?

6 Verify the correctness

• Ensure that the facts stated have been recorded correctly.• Object to the irregularity in the conduct of the search, if

any, and record such objection in writing.

7 Points to be taken care of

• Never lie to mislead (IPC sec. 416)• Not to remove or destroy any article from the place being

searched (IPC 204).• Never refuse to answer. You may request to refer matter to

accounts. Reply exactly what is asked.

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Whether a letter written by a partner of a firm after conclusion of a search admitting undisclosed income can be regarded as statement u/s 132(4)? Ans: NO.

CIT v. Pampapathi (2009) 310 ITR 64 (Kar) However, such letter given before conclusion of search accompanied by its reference in a subsequent statement u/s 131(1A) MAY BE considered as a binding confession made in statement u/s 132(4).

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Evidentiary Value of Statement Recorded u/s 133A

Statement u/s 133A is not recorded on oath and, therefore, in the absence of any corroborative evidence, has no

evidentiary value. Refer:

CIT v. S. Khader khan & Sons 352 ITR 480(SC), Paul Mathews and Sons 263 ITR 101 (Ker)

Cont ..

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Cont. ….However addition can be made on the basis of assessee’s statement in survey, if it is supported by relevant material.

Refer : CIT v. P. Balasubramaniam 215 Taxman 288 [2013] Madras – High Court and

Mumbai ITAT Income tax Officer v. Devji Premji Pujara & Sons 34 Taxman.com 96 [ 2013] (Both the decisions are rendered after considering the decision of S. Khadar Khan & sons)

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Significance of Disclosure of Undisclosed Income at Surveyed Premises (when survey is carried out simultaneously with search) :

When survey is carried out simultaneously with search, it is advisable to make disclosure of undisclosed income at the surveyed premises u/s 133A if such income pertains such premises.

This being not an “undisclosed income” as defined u/s 271AAB, no penalty even @ 10% can be levied.

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Search Proceedings u/s 132 Survey Proceedings u/s 133ASeizure of Books of account as well as money, jewellery, bullion and other valuable article

Impounding of only Books of account and other documents

Retention - Not exceeding 60 Days [As per Section139(9A)*

Retention- Not exceeding 10 Days [As per section 133A(3)(ia)]**

Statement recorded on oath and used as evidence in subsequent proceedings

Statement not recorded on oath and hence, in the absence of incriminating material, no evidentiary value

Retraction- Possible Retraction – Easier - As no evidentiary value 

Pending Assessments - Abate Not applicable

Statement u/s 131(1A) - Can be recorded Statement u/s 131(1A)- Can be recorded

* Books of accounts or documents shall not be retained by the A.O. for a period exceeding thirty days from the date of the order of asst. u/s 153A

**It can be extended with prior approval of CCIT or DGIT as the case may be.

Brief Comparison between Search u/s 132 and Survey u/s 133A

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Income Tax Department has conducted search in the case of Mr. A at his residence and survey was carried out at the premises of the company in which Mr. A is a director

Mr. A admitted at the surveyed premises (in the statement recorded under Section 133A) unaccounted income of Rs 50 crore in the hands of the Company as pertaining to the ‘specified year’

Under this scenario whether immunity from penalty can be sought for disclosure made in statement u/s 133A, at the surveyed business premises?

Cont….

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Cont….Ans: Yes, as the search was not in the case of the Company in whose hands the income was disclosed

Relevant extracts of Section 271AAB“Penalty where search has been initiated.(1) …, in a case where search has been initiated under

section 132 …. the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,—

(a) a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year, if such assessee—

(i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income

has been derived; ”

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A search in the case of Mr. X was carried at his residence and survey was also carried out at his business premises Mr. X admitted unaccounted income at the surveyed premises for Rs 50 crore pertaining to the ‘specified year’ in the statement recorded under Section 133A Under this scenario whether immunity from penalty can be sought for disclosure made in the statement u/s 133A, at the surveyed business premises?

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Ans: Yes (Seriously debatable) Relevant extracts of Section 271AAB“Penalty where search has been initiated.(1) …, in a case where search has been initiated under

section 132 …. the assessee shall pay by way of penalty, in addition to tax, if any, payable by him,—

(a) a sum computed at the rate of ten per cent of the undisclosed income of the specified previous year, if such assessee—

(i) in the course of the search, in a statement under sub-section (4) of section 132, admits the undisclosed income and specifies the manner in which such income has been derived; ”

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Importance of Disclosing/Substantiating the manner of earning undisclosed income in following proceedings :

(a) Assessment Proceedings

(b) Penalty Proceedings

(c) Application for Settlement before Settlement Commission

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The meaning of “Substantiate” :

Refer:Hon’ble ITAT, Ahmedabad in Gujarat Credit Corporation Ltd. v. ACIT [113 ITD 133 (Ahd)(SB)]

“…‘NOT ABLE TO SUBSTANTIATE’ DOES NOT MEAN NOT ACCEPTED BY THE AUTHORITY CONCERNED BUT NOT SHOWING A SUBSTANCE IN THE CLAIM MADE BY THE ASSESSEE. THE WORD ‘SUBSTANTIATE’ IS OPPOSITE TO THE WORDS VAGUE OR FANCIFUL, OR WITHOUT ANY FOUNDATION OR BASIS….

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Importance of Substantiating the manner of earning

undisclosed income - In assessment proceedings

(a) To avail the benefit of telescoping e. g. in the case of unexplained jewellery and notings of unaccounted sales, the Assessee can take a stand that jewellery was acquired out of income from unaccounted sales. By doing so:

Source of jewellery is explained Penalty may be levied @ 10% as against 20% u/s 271AAB.

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Penalty Proceeding If no specific question on manner of earning income is asked while recording the statement, immunity u/s 271AAA/ 271AAB is available. Refer: (1) CIT v. Mahendra C. Shah (172 Taxman 58) (Guj HC) (2) CIT v. Radha Kishan Goel 152 Taxman 290 (All. HC) (3) DCIT vs. Sulochanadevi A. Agarwal [ITA No. 1052/Ahd/2012 dated 20.07.201.(Ahmedabad I.T.A.T.) (In that case, disclosure was made by son of appellant). (4) Pramod Kumar Jain V/s DCIT 77 DTR 244 (Cuttak I.T.A.T.) (5) DCIT Vs. Dr. Mukesh S. Shah (ITA No.1942/Ahd/2012) dated 05/04/2013

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For making Settlement Application - Disclosure of Manner of earning income is sine qua non -

For making application u/s 245C the manner of earning income should be explained in the Statement of Facts of the application for settlement and it is not necessary that such manner is explained in statement u/s 132(4)/131 of the Act

Failure to disclose manner of earning income in the Statement of Facts of the application for settlement (even where otherwise full and true disclosure of income is made) would result in rejection of application for settlement even at the stage of section 245D(1).

Refer: Vishnubhai Mafatlal Patel v/s Assistant Commissioner of Income-tax [2013] 31 taxmann.com 99 (GUJ.)

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The Commission might, at any stage till it passed a final order under Section 245D(4), examine the issues and if there

was sufficient material on record, determine the question of full and true disclosure and the manner in which the undisclosed income was derived and, depending on such a decision, the applications might be thrown out or they might be proceeded with further.

CIT V. INCOME TAX SETTLEMENT COMMISSION [2013] 35 taxmann.com 56 (Delhi)

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Retraction of Confession made in Statement (1) It is completely factual and differs from case to case

(2) It should be as early as possible after confession

(3) It should be made in an affidavit and backed by corroborative evidences justifying the retraction

(4) As discussed earlier, statement given u/s 132(4) is on oath and u/s 133A is not on oath and therefore it is difficult to retract the disclosure made in the statement u/s132(4) as compared to the disclosure made in the statement made u/s 133A

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Cont….(1) Can a confession u/s 132(4) be retracted even though it is made on oath?

(a) Though difficult, can be retracted (b) In the absence of any corroborative evidence, Assessing Officer cannot make addition on properly retracted statementRefer:

In Kailashben Manharlal Choksi v. CIT [2008] 14 DTR 257 (Guj ), it has been held that statement recorded at odd hours cannot be considered to be a voluntary statement and if it is

subsequently retracted and necessary evidence contrary to such admission is led, the admission will not be binding

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Cont….Further attention is also invited to the CBDT’s circular No. 286/2/2003-IT (Inv.), dt. 10th March, 2003 which reads as under:-

“Instances have come to the notice of the Board where assessees have claimed that they have been forced to confess the undisclosed income during the course of the search and seizure and survey operations. Such confessions, if not based upon credible evidence, are later retracted by the concerned assessees while filing returns of income. In these circumstances, confessions during the course of search and seizure and survey operations do not serve any useful purpose. ” 

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Vinod Solanki v. Union of India (SC) (Civil Appeal No. 7407 of 2008 dated : 18/12/2008)

Effect of retraction of statement of confession Evidence in the form of confession can be dislodged (by

making retraction) only by cogent evidence

Initial burden to show that confession was voluntary and not obtained by resorting to coercive means is on the Department

Also Refer: CIT v. O. Abdul Razak 350 ITR 71 (KER.)

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Can cash seized by the Department be treated as amounting to payment of tax?

Section 132B states that• Seized Cash can be adjusted against any existing income tax and

wealth tax liability• It can also be adjusted against tax liability determined on completion

of assessment u/s 153A.• Where an application to the A.O. is made for release of asset within

30 days from the end of the month in which asset was seized and ifnature & source of such asset is explained to the satisfaction of the A.O.

the amount of any existing liability may be recovered out of such asset and remaining portion if any of the asset may be released with the prior approval of CIT or CCIT.

Contd....

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Cont...• After the amendment made by the Finance Act, 2013 w.e.f 1.06.2013,

seized cash cannot be adjusted against liability for payment of advance tax

• Before the above amendment, the assessees used to request in writing for adjustment of seized cash against liability for payment of advance tax and courts had taken the view that seized cash should be applied

towards such liability.

Refer• Shri Ram S. Sarda v DCIT (ITA no. 1172/Rjt/2010 dated 02/11/2011)• Shreeji prints Pvt. Ltd. v. ACIT (ITA no. 359/Ahd/2012 dated 20/04/2012)

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Existing Tax Liability• A view may be taken that, after the amendment of Section 132B by the Finance Act, 2013, adjustment of seized cash is available only on completion of assessment, since tax liability is determined at that point of time But where, the Assessee himself offers the seized cash as undisclosed income in his Return of Income, a view can be taken that the liability is created on the filing of the Return and accordingly, the seized cash must be adjusted against his self assessment tax liability. Under this scenario it is advisable to file a letter seeking adjustment of seized cash against the self assessment tax liability.

Cont.......

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However Department may take a view that, existing tax liability is determined only when Return of Income is processed

u/s 143(1) and in such situation the following consequences may arise:

Return of income may be considered as defective and may be considered as non est

Immunity from penalty u/s 271AAB may not be available Application for settlement may be rejected as the payment of additional

tax is a pre condition for a valid petition [Section 245C(1)(ii)]

Assessee may be treated as Assessee in default u/s 140A(3) for non payment of Tax

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Is the amendment to section 132B made by the Finance Act 2013, retrospective ?

Ans: No.Explanation 2 to section 132B was inserted by the Finance Act, 2013 with effect from 1-6-2013 to clarify that existing liability would not include advance tax liability so that cash seized during search cannot be adjusted towards advance tax liability. Since the Legislature has, by express words, made Explanation 2 to operate prospectively, no retrospective effect can be given to it

Refer: Kanishka Prints (P.) Ltd. V/s ACIT [2013] 34 taxmann.com 307 (Ahmedabad - Trib.)

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Other Aspects Relating to Search and Seizure Release of Seized Assets other than Cash-Can seized assets be released on payment of equivalent amount of cash in PD Account ?Ans : Yes , Provided at any time with the approval of CIT or CCIT, the assessee accepts unconditionally the ownership of the seized assets and also the valuation of the seized assets, determined at the time

of search and seizure operation;  makes a request in writing requesting release of seized assets against

equivalent amount of cash to be provided by him; pays to the CIT a draft of an amount equal to the value of the seized

assets; andCont…

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Cont… agrees in writing that the amount may be deposited in the PD account and may be

used for adjustment against tax liability in accordance with the provision of Section 132B of the Act.

The seized assets can also be released at any time, with the approval of the Commissioner of Income Tax or Chief Commissioner of Income Tax, provided: he assessee unconditionally accepts the ownership and the valuation of the

seized assets determined at the time of search and seizure operation; and  makes a written request to release the seized assets and provides unconditional

and irrevocable bank guarantee to the extent of the value of assets seized.

Ref : ”Release of Seized Assets other than Cash” – Instruction no. F. No. 286/6/2008 dated 21st January 2009

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Precautions to be taken during stock taking by search party:

Carefully oversee/ watch procedure followed by Search Party to ensure that:

Stock found is normally valued on the basis of the purchase bills produced. Method of valuation Quantity Rates applied for valuation Arithmetical accuracy Error must be immediately brought to the notice of the Search Party

EITHER THROUGH AFFADAVIT OR THROUGH SEPARATE COMMUNCATION.

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Precautions to be taken while explaining Jewellery :

Valuation should be supported by Valuer’s Report

Carefully observe procedure followed by Search Party

Following Jewellery must be identified to the Search party

- Stock in trade and Disclosed in the wealth tax return

Wealth tax return disclosing jewellery should be readily available

Copies of bills and source of purchases should be readily available

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Precautions to be taken while explaining Jewellery :

At the time of explaining jewellery, it should be categorically explained that though the jewellery found from the locker of one person or room it belongs to other family members, if living in joint family.

It is always advisable to state that, the jewellery belongs to family as a whole, so as to take maximum benefit of the of the CBDT Instruction no. 1916 can be availed.

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Practical Aspects in Assessment of Search Cases

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Section 153A – Salient Features

Overrides sections 139, 147, 148, 149, 151and 153 AO shall issue notice to the person searched to file Return of Income for six

Assessment Years immediately preceding the year in which the search is conducted. ROI filed is treated as return u/s 139

AO to assess/ reassess total income for six assessment years Assessment/ reassessment in relation to any assessment year :- falling within the period of such six assessment years pending on the date of initiation of search shall ‘abate’

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When the commencement and conclusion of search falls in two different financial year, which six assessment years are covered in notice under section 153A?

e.g. If the search is commenced as on 15th March, 2011 and concluded on 30th April, 2011.

Ans - In this case the search is conducted in A.Y. 2011-12 (i.e. F.Y. 2010-11). Notices under section 153A are required to be issued for A.Y. 2005-06 to 2010-11.

Cont…

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Cont… What is material for issuance of notice under Section 153A is the CONDUCT of search and not the date on which the search concludes

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

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Latest Position as per decision of Pratibha Industries Limited and PACL India Limited (after considering the decision of All Cargo Global Logistic Limited and Anil Kumar Bhatia)

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Whether in other cases, in addition to income that has already been assessed, assessment under section 153A will be made on basis of incriminating material viz. books of account, other document, found in course of search but not produced in course of original assessment, and undisclosed income or property discovered in course of search - Held, yes”

The provision under section 153A is applicable where a search or requisition is initiated after 31-5-2003. In such a case the Assessing Officer is obliged to issue notice under section 153A in respect of six preceding years, preceding the year in which search etc. has been initiated.

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If any incriminating material is found during search, provision of section 153A is triggered and assessing officer is required to issue notices u/s 153A for earlier six years and make assessment/reassessment of total income related to those years.  

“We are not concerned with a case where no incriminating material was found during the search conducted u/s 132 of the Act. We, therefore, express no opinion as to whether section 153A can be invoked even in such a situation. That question is therefore left open”.

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Decision of Mumbai I.T.A.T., in case of Pratibha Industries Limited ( Dated 19/12/2012 considered both the above decisions)

The argument of the assessee, that when there was no incriminating material or assets, then there is no jurisdiction of section 153A, cannot be accepted (Para 46) 

Now one has to examine a situation where on the date of initiation of search under section 132 or requisition of books, no proceeding(s) is pending, but in the search, material is found indicating incriminating material. In this situation, the Assessing Officer embarks on a jurisdiction, wherein he has to club the two sets of incomes, i.e. returned income and the unearthed income and arrive at the total income. [Para 48]  Wherein, in the search operation, no incriminating material is found, 2nd proviso stops the Assessing Officer to proceed further, because proceedings cannot be abated and since there is no material, no further jurisdiction is embarked on him (Para 49)

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Decision of Delhi ITAT in case of PACL India Limited ( I.T. A No 2637/Del/2010) dated 20/06/2013 

“In the present case, neither any incriminating material was found nor any other material or document along with books of accounts were found, which were not produced before the AO while completing the assessment originally……..

Whenever the abated proceedings are merged with the proceedings u/s 153A then scope of assessment is vide and it will cover all issues arising from the original return and issue arising on the basis of incriminating documents, and assets found and seized during the search.

Wherever the proceedings are completed prior to the search then nothing merges with proceeding u/s 153A of the Act and nothing abates. In such a situation, the AO has to respect the completeness of the proceedings. Admittedly, in the case of assessee, no incriminating documents were found and seized.

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The provisions of section 153A give power to assessing officer to assess and reassess the income. The assessing officer is empowered to make addition on account of undisclosed income or income escaped assessment. In the case under consideration, there is no incriminating material found during the course of search relating to the assessment year under consideration……..

The facts and circumstances of the assessee clearly show that no incriminating document found relating to the land development expenses debited in the books of accounts. No material was on the record on that basis which income of assessee could be further assessed by Assessing Officer. Therefore, the assessing officer has no jurisdiction to make or to resort to roving and

fishing inquiries to find out whether any income has escaped assessment during these reassessment proceedings..”

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Meaning of “Belonging to” considering the recent judicial pronouncementSection 153C- The said section deals with assessment of income of any person other than the person searched

Before invoking said section Assessing Officer must satisfy that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person Referred to in section 153A………

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Whether Documents recovered during search under section 132 on buyer's premises are deemed to belong to the seller of properties within the meaning of section 153C ?

Ans: Yes, Term 'belong' is not defined and does not have legally technical connotation and, therefore, one should fall back on the dictionary meaning of the same. One need to

ascertain if such document can be stated to 'have relation or reference to' to the assessee. Refer: Kamleshbhai Dharamshibhai Patel v. CIT [2013] 214 TAXMAN 558 (GUJ.)

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Cont…In aforesaid case the Hon'ble Court observed that ( i.e of Vijaybhai N. Chandrani), court quashed the action of the Revenue authorities when it was found that copies of loose sheets of papers which were found during the search cannot be stated to belong to the person other than the searched person. It was the case wherein, on the basis of such documents seized during search operations on a builder, action under Section 153C of the Act was initiated against the purchasers of the properties.

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Cont…The decision of Vijaybhai N Chandrani has been set aside by Hon’ble Supreme Court without expressing any opinion on the correctness or otherwise of the construction that is placed by the Hon’ble High Court. The court observed that Writ Petition lies only when the alternate remedy is exhausted.(Civil Appeal No. 5888 of 2013 dated 18/07/2013

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Whether assessment once framed u/s 153A can be reopened u/s 148?Ans: Yes, provided action under section 147/148 can be taken only if the conditions as envisaged therein are complied with and one will have to apply the test an the principles established in accordance with various jurisdictional pronouncements so as to justify the action under these sections.

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Whether assessee is under compulsion to provide the password of laptop which is seized during the search proceeding?Ans: Section 132(1)(iib) which casts a compulsion on the owner of the laptops to provide the department with the password to the computer to enable inspection of the books of account maintained in electronic form in the laptops.Refer S.R. Batiliboi & Co. v. DCIT (Inv.) – Delhi High Court 315 ITR 137 (2009)