ITA No. 1355 to 1360/B/2014 1 IN INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B , BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA No. 1355 to 1360/B/2014 Assessment Years 2005 06 to 2010 11 M/s Associated Mining Co., Vs DCIT, Central Circle 1 (3), nd No. 18/35, 2 Link Road, Bangalore Paravthinagar, Bellary 583101. PAN AAFHA3896P (Appellant) (Respondent) Assessee by Shri Mayank Jain, Advocate Revenue by Ms Neera Malhotra, CIT DR Date of hearing 03/08/2016 Date of pronouncement 18/10/2016 ORDER PER BENCH: All these six appeals are filed by assessee and these are directed against two separate orders of Learned CIT (A) VI, Bangalore both dated 29.04.2013. first order is for two Assessment years i.e. 2005 06 & 2006 07 and second order is for remaining four assessment years i.e. 2007 08 to 2010 11. All these appeals were heard together and are being disposed of by this common order for sake of convenience. 2. At very outset, this was submitted by learned AR of assessee that in present case, there is no valid search carried out in present case and therefore, orders passed by A.O. u/s 153A are not valid. In this regard, he submitted that as per assessment orders, alleged search was carried out at 18/35, Second Link Road, Parvathinagar, Bellary and as peer Panchnama available on pages 163 to 193 also, search was carried out at ITA No. 1355 to 1360/B/2014 2 same address. Thereafter, he submitted that in assessment order itself, A.O. himself has noted that new address of firm after reconstitution is No. 123/150, Opposite Kumarswamy Temple, Club Road, Veerana Gouda Colony, Bellary. He also submitted that date of reconstitution of firm is 01.08.2009 as noted by A.O. himself on page 2 of assessment order. He also submitted that Income Tax Return of assessee firm for A. Y. 2010 11 was filed on 15.10.2010 as per copy of return available on page 130 of paper book. Thereafter, he submitted that on page 1 of assessment order, A.O. has noted that search in question was carried out on 10.12.2010 on strength of search warrant dated 09.12.2010 in case of Shri K. M. Viswanath Group of cases. Thereafter, he submitted that sworn statement dated 10.12.2010 of Mr. S. Sreenivas Murthy is available on pages 259 to 262 of paper book and in reply to question no. 3 about names of concerns which are carrying out business from searched premises, he stated that presently only one concern M/s K. M. Parvathamma is having office in this address and M/s Associated Mining Company was in this premises up to 31.07.20019 and thereafter, said firm was taken over by Sri G. Janardan Reddy and his wife and he was manager Finance & Accounts of M/s Associated Mining Company. He submitted that in view of these facts, it is clear that no search was carried out in case of present assessee and simply because of this that name of assessee firm is there in search warrant and panchnama, it cannot be said that any valid search was carried out in case of assessee and as consequence, proceedings u/s 153A can be initiated against assessee. He submitted that under these facts, it should be held that no valid search was conducted against assessee and therefore, assessments orders passed u/s 153A are null and void. In support of this contention, he placed reliance on tribunal order rendered in case of J. M. Trading Corpn. Vs. ACIT as reported in 20 SOT 489. ITA No. 1355 to 1360/B/2014 3 3. As against this, learned DR of revenue supported orders of authorities below. She also submitted that in Para 18 of this tribunal order cited by learned AR of assessee, it was shown by assessee in that case that premises in question was let out to business group of companies and rental income was offered to tax by assessee being owner of premises and under these facts, tribunal held that search was not against assessee but in present case, there are no such facts and therefore this tribunal order is not applicable in present case. She also submitted that after carrying out of valid search, invocation of section 153A by A.O. is valid and assessee in present case has not been able to establish that no valid search was conducted against assessee. 4. We have considered rival submissions and perused materials on record and gone through judgment cited by learned AR of assessee. There is no dispute that if valid search is conducted against assessee, invocation of section 153A by A.O. is valid. Hence, we have to examine as to whether search conducted at 18/35, Second Link Road, Parvathinagar, Bellary is valid search against assessee or not. In this regard we find that as per address given in return of income filed by present assessee for A.Y. 2010 11 filed on 15.10.2010, address is different and not of searched premises. A.O. himself in assessment order has noted that new address of firm after reconstitution is No. 123/150, Opposite Kumarswamy Temple, Club Road, Veerana Gouda Colony, Bellary and date of reconstitution of firm is 01.08.20019 as noted by A.O. himself on page 2 of assessment order. alleged search was carried out at 18/35, Second Link Road, Parvathinagar, Bellary and as per Panchnama available on pages 163 to 193 also, search was carried out at same address. On page 1 of assessment order, A.O. himself has noted that search in ITA No. 1355 to 1360/B/2014 4 question was carried out on 10.12.2010 on strength of search warrant dated 09.12.2010 in case of Shri K. M. Viswanath Group of cases. When firm was reconstituted on 01.08.2009 and after reconstitution, address has changed which is on record of revenue in return of income for A. Y. 2010 11 filed before search and person found at searched premises also stated on date of search itself that in searched premises, there is no office of assessee firm, it cannot be said that valid search was conducted against assessee merely on this basis that name of assessee is stated in search warrant and Panchnama. In our considered opinion, under these facts, tribunal order rendered in case of J. M. Trading Corpn. Vs. ACIT (Supra) is squarely applicable. objection of learned DR of revenue is this that searched premises in that case were let out to different company in that case and rental income was offered to tax and so assessed and since in present case, there is no such let out, this tribunal order is not applicable. In this regard, we are of considered opinion that real basis of that tribunal order is this that searched premises in that case were not in occupation of assessee and for this reason, it was held that search at that premises was not search conducted against assessee. basis of establishing that searched premises were not in occupation of assessee was fact of letting out to different company. In present case, same thing that searched premises were not in occupation of assessee is being established by assessee on different basis that firm was reconstituted and after reconstitution, address changed and new address was brought on record of department also on date prior to search by filing return of income for A. Y. 2010 11 and in sworn statement of person found at time of search also, this fact was pointed out that this assessee firm was not having any office at that address at that point of time and hence, in our considered opinion, at least after knowing this fact at time of search, department ITA No. 1355 to 1360/B/2014 5 should have conducted search at correct address of assessee if department wanted to search assessee after finding out present address of assessee and after obtaining search warrant for that address. This is very surprising because generally, department carries out detailed but silent enquiries before conducting search about not only address but also spots where they can find material and in spite of this, department carried out search at old address only although new address was brought on record by assessee by filing return of income for A. Y. 2010 11 on 15.10.2010 and search was conducted on 10.12.2010 i.e. after almost two months. Considering these facts, we hold that present assessment orders are null and void by respectfully following tribunal order rendered in case of J. M. Trading Corpn. Vs. ACIT (Supra). 5. In view of our decision in above Para, no other ground in any of appeals requires any separate adjudication. 6. In result, all six appeals of assessee are allowed. (Order was pronounced in open court on date mentioned on caption page) (SUNIL KUMAR YADAV) (A.K. GARODIA ) Judicial Member Accountant Member Dated: 18/10/2016 am* Copy of order forwarded to : 1.The Appellant 2.The Respondent. 3.Concerned CIT 4.The CIT(A) 5.D.R., I.T.A.T., Bangalore Asstt. Registrar ITA No. 1355 to 1360/B/2014 6 1. DATE OF DICTATION 2. , , DATE ON WHICH TYPED DRAFT IS PLACED BEFORE DICTATING MEMBER .. 3. . / DATE ON WHICH APPROVED DRAFT COMES TO PS/Sr.PS . 4. DATE ON WHICH ORDER IS PLACED BEFORE DICTATING MEMBER FOR PRONOUNCEMENT 5. . / . . DATE ON WHICH ORDER COMES BACK TO PS/Sr.PS .. 6 DATE OF UPLOADING ORDER ON WEBSITE .. 7. , IF NOT UPLOADED, FURNISH REASON FOR DOING SO . 8. DATE ON WHICH FILE GOES TO BENCH CLERK .. 9. / DATE ON WHICH ORDER GOES FOR XEROX &ENDORSEMENT 10. DATE ON WHICH FILE GOES TO HEAD CLERK 11. DATE ON WHICH FILE GOES TO ASSISTANT REGISTRAR FOR SIGNATURE ON ORDER . 12. DATE ON WHICH FILE GOES TO DESPATCH SECTION FOR DESPATCH OF TRIBUNAL ORDER 13. DATE OF DESPATCH OF ORDER . M/s Associated Mining Co. v. DCIT, Central Circle 1 (3), Bangalore