Delhi High Court
The Commissioner Of Income Tax ... vs M/S D. D. Sales Corporation on 22 July, 2008
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.07.2008
+ ITA 489/2005
THE COMMISSIONER OF INCOME TAX
DELHI (CENTRAL)-III ... Appellant
- versus -
M/S D. D. SALES CORPORATION ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr R. D Jolly with Mr Paras Chaudhary
For the Respondent : Mr P. N Monga with Mr Manu Monga
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether Reporters of local papers may be allowed to
see the judgment ?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
BADAR DURREZ AHMED, J (ORAL)
1. This appeal has been preferred by the revenue against the
order passed by the Income Tax Appellate Tribunal on 06.10.2004 in
IT (SS) No. 278/Del./1997 in respect of the block period 01.04.1986 to
29.08.1996. The ground raised by the assessee in its appeal before the
Tribunal was as under:-
―That the search having been conducted on 29.08.1996
/30.08.1996, the assessment made on 31.10.1997, is barred
by limitation in view of the provisions contained in Section
158 BE (1) (a) of the Income Tax Act, 1961. The
impugned order having been passed beyond the period of
one year from the end of the month in which the last
authorization for search under Section 132 had been
executed, the assessment made under Section 158BC,
therefore deserves to be vacated.‖
A reading of the aforesaid ground of appeal before the Appellate
Tribunal makes it clear that the question was with regard to the bar of
limitation in making an assessment order for the block period under
Section 158 BC. The limitation is prescribed, admittedly, by the
provisions of Section 158 BE (1) (a) of the Income Tax Act, 1961. The
said section, inter alia, stipulates that the order under Section 158 BC
shall be passed within one year from the end of the month in which the
last authorization for search under Section 132 was executed.
Explanation 2 appended at the end of Section 158 BE reads as under:-
―Explanation 2. -- For the removal of doubts, it is hereby
declared that the authorisation referred to in sub-section (1)
shall be deemed to have been executed, --
(a) in the case of search, on the conclusion of
search as recorded in the last panchnama drawn
in relation to any person in whose case the
warrant of authorisation has been issued;
(b) in the case of requisition under section 132A,
on the actual receipts of the books of account
or other documents or assets by the Authorised
Officer.‖
A reading of the said Explanation 2 indicates that what is crucial is to
note the date of conclusion of the search as recorded in the last
panchnama drawn in relation to any person in whose case the warrant
of authorization had been issued. That date on which the search has
concluded would be deemed to be the date on which the authorization
would have been executed.
2. In the present case there is only one panchnama and as
recorded in the Tribunal's order the date and time of search and close
of the search is clearly mentioned in paragraph 8 of the panchnama
which was prepared on 30.08.1996. It was recorded that the search
commenced on 29.08.1996 at 8.45 pm and closed at 30.08.1996 at 3.45
pm. Consequently, in view of the provisions of Section 158BE and,
particularly, Explanation 2 to the said Section it is apparent that the
authorization was executed on 30.08.1996 at 3.45 pm. The contention
raised by the revenue that the restraint order had been lifted on
17.10.1996 and, therefore, the search continued was not accepted by
the Income Tax Appellate Tribunal. In view of the deeming
provisions provided in Explanation 2, the conclusion arrived at by the
Tribunal on the basis of the factual position that the date and time of
the search and the close of the search was recorded in the panchnama,
cannot be faulted. The closure of the search recorded in the
panchnama was at 3.45 pm on 30.08.1996. The Tribunal also noted
that this was the only panchnama and there was no other panchnama
prepared nor any further material was found in consequence of the
search. In view of the clear provisions of law and the factual position,
as indicated in the Tribunal's order, we find that no substantial question
of law arises in this case for our consideration. The finding of facts
arrived at by the Tribunal also cannot be said to be perverse.
The appeal is dismissed.
BADAR DURREZ AHMED, J
RAJIV SHAKDHER, J
July 22, 2008
SR
