Dismissed

Comnr.of Income Tax v. Sikhya O Anusandhan

Orissa HC3 Jan 2023ITA/117/2011

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed appeals by the Revenue challenging the ITAT's conclusion that assessment proceedings under Section 153A of the Income Tax Act were without jurisdiction as no valid search warrant had been produced for a 2005 search operation.

What did the court decide?

Appeals dismissing the Revenue's challenge to the ITAT order quashing Section 153A proceedings due to lack of search warrant.

Comnr.of Income Tax Vs Sikhya O Anusandhan — Income Tax | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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ITA Nos.117, 118, 119, 120, 121, 122 and 123 of 2011

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…. Commissioner of Income Tax, Appellant Bhubaneswar

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Mr. Radheshyam Chimanka, Senior Standing Counsel along with Mr. Avinash Kedia, Junior Standing Counsel for the Revenue Department

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-versus-

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…. Sikhya ‘O’ Anusandhan Respondent

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Mr. Siddhartha Ray, Senior Counsel assisted by Mr. K. K. Sahoo, Advocate

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CORAM:

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THE CHIEF JUSTICE JUSTICE M.S. RAMAN

ORDER 03.01.2023

Order No.

Dr. S. Muralidhar, CJ.

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These appeals by the Revenue Department-Appellant are directed against a common order dated 23^rd June, 2011 passed by the Income Tax Appellate Tribunal, Cuttack Bench, Cuttack (ITAT) in IT (SS)A Nos.39 to 45/CTK/2008 for the Assessment Years (AYs) 2000-01 to 2006-07.

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The question sought to be urged by the Revenue in these appeals for consideration of this Court is whether ITAT was justified in holding that the proceedings initiated against the RespondentAssessee under Section 153A of the Income Tax Act, 1961 (Act) was without jurisdiction inasmuch as there was no search warrant at

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all issued preceding the search conducted in the residential and office premises of the Respondent?

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This is not the first round of litigation concerning the Respondent-Assessee for the aforementioned years. In fact, this is the second round of litigation.

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The background facts are that the Respondent is a Society registered under the Societies Registration Act, 1860 and was created for charitable purpose for imparting technical education. It has established several education institutions in Bhubaneswar and has been conferred upon the status of ‘Deemed University’ by the University Grants Commission.

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Admittedly, on 9^th and 10^th August 2005, a search was undertaken by the Department in the residential premises of the President of the Society. It is stated that books of accounts, documents, etc. were seized during the course of the search.

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Pursuant to such search and seizure operation, proceedings under Section 153A of the Act were initiated against the RespondentAssessee. A tax demand of Rs.15,35,75,989/- was raised for the aforementioned seven AYs i.e. 2000-01 to 2006-07.

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Challenging the assessment orders, the Respondent-Assessee filed appeals before the Commissioner of Income Tax (Appeals) [CIT(A)]. After the appeals were dismissed by the CIT(A), the Assessee went in appeals before the ITAT where for the first time it raised an additional ground that since no search warrant had been

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issued, much less served on the Assessee, the proceedings initiated under Section 153A of the Act were without legal basis.

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The ITAT, in the first round, remitted the matters to the CIT(A) to first decide the additional ground viz., whether in fact any search warrant was issued authorizing the search conducted in the premises of the Respondent-Assessee.

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Aggrieved by the aforesaid order of the ITAT, the Assessee came before this Court in appeal which came to be decided by a Division Bench of this Court in Siksha “O” Anusandhan v. Commissioner of Income Tax, Orissa (2011) 336 ITR 112. This Court noted that from the order of the ITAT it was not clear whether the Revenue had produced the relevant search records and whether the ITAT had been able to verify therefrom whether in fact there was search warrant. It was held by this Court that the matter should not have been remitted by the ITAT to the CIT(A) for adjudication of the additional ground without undertaking the aforementioned exercise. As a result, the order of the ITAT was set aside by this Court and the matter was remitted to it to be re-heard. In the operative portion of its order, this Court made it clear “that if the Tribunal comes to the conclusion that there was no search warrant in the name of the Appellant as contended by the Appellant-assessee, then it would be open to the Department to make assessment in a manner other than Section 153A, if permissible under the law.”

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Pursuant to the above order of this Court, the ITAT was again seized up the matter and passed the impugned order against which the Revenue is in appeals before this Court.

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In the said impugned order, passed after remand, the ITAT came to the categorical conclusion, after examining the records produced by the Revenue, that no search warrant had been in fact issued authorizing the search conducted in the premises of the Respondent-Assessee. As a result, the ITAT concluded that the assessment against the Respondent-Assessee under Section 153A of the Act was “without jurisdiction and liable to be quashed.” 12. Before this Court, Mr. Radheshyam Chimanka, learned Senior Standing Counsel for the Revenue Department-Appellant placed reliance on the judgments of the Punjab and Haryana High Court in Jai Bhagwan Om Parkash v. Director of Inspection (1994) 208 ITR 424 (P & H) and on the Madras High Court in I. Deverajan v. Tamilnadu Farmers Service Co-Operative Federation, 131 ITR 506 (Mad.) . Having examining the said two decisions, the Court finds that they arose in different fact situations and, therefore, are distinguishable. As far as the present cases are concerned, this Court in the first round of litigation accepted the legal position that without there being a valid search warrant authorizing the search in the premises of the Assessee under Section 132 of the Act, the question of initiating proceedings under Section 153A of the Act did not arise. The matter had been remanded to the ITAT only for determining the factual aspect of the existence of a valid search warrant.

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Before this Court also the Revenue has not been able to demonstrate that there exists in the records of the Revenue a valid search warrant authorizing the searches that were conducted in the premises of the Respondent-Assessee on 9^th and 10^th August, 2005.

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De hors such search warrant, validly issued to authorize the search, the question of initiating proceedings under Section 153A of the Act simply did not arise. Since the issue has turned purely on facts, the Court is unable to find any error having been committed by the ITAT in concluding that the entire assessment proceedings under Section 153A of the Act against the Respondent-Assessee were invalid.

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As a result, the Court is unable to be persuaded to frame the question as urged by the Revenue in these appeals. No substantial question of law arises for consideration by this Court.

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The appeals are accordingly dismissed.

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M. Panda

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(Dr. S. Muralidhar)
Chief Justice
(M.S. Raman)
Judge

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Comnr.of Income Tax v. Sikhya O Anusandhan

Case brief

What is this about?

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Comnr.of Income Tax v. Sikhya O Anusandhan

Case brief

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