#6&8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:16th February, 2010
+ ITA No.155/2010
THE COMMISSIONER OF INCOME TAX (CENTRAL-II)
E-2, ARA CENTRE
JHANDEWALAN EXTENSION
NEW DELHI
..... Appellant
- versus -
P.C. JAIN (HUF)
THROUGH SHRI DINESH JAIN
22-A, RAJPUR ROAD
CIVIL LINES
DELHI ..... Respondent
WITH
ITA No.169/2010
THE COMMISSIONER OF INCOME TAX (CENTRAL-II)
E-2, ARA CENTRE
JHANDEWALAN EXTENSION
NEW DELHI
….. Appellant
– versus –
P.C. JAIN (HUF)
THROUGH SHRI DINESH JAIN
22-A, RAJPUR ROAD
CIVIL LINES
DELHI ..... Respondent
Advocates who appeared in this case:
For the Appellant : Ms Rashmi Chopra
For the Respondent : Mr Piyush Kaushik
ITA Nos.155/2010 & 169/2010 Page 1 of 4
CORAM:
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE SIDDHARTH MRIDUL
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 the
Digest?
BADAR DURREZ AHMED, J (ORAL)
CM 1578/2010 in ITA No.155/2010 (Condonation of Delay)
Delay in filing the appeal is condoned.
The application stands disposed of.
CM 1577/2010 in ITA No.155/2010 (Exemption)
Allowed subject to all just exceptions.
The application stands disposed of.
ITA No.155/2010 & 169/2010
1. These two appeals arise out of the common order passed by the
Income Tax Appellate Tribunal on 22nd April, 2009 pertaining to the
assessment year 2001-02 and in respect of two appeals, one by the
Revenue and one by the assessee in ITA No.2138/Del./2008 and
1326/Del/2008 respectively, filed before the said Tribunal.
2. In the assessee’s appeal one of the points taken was that the
warrant of authorization had been issued by the Additional Director of
Income Tax (Investigation) who was not authorized to issue such a search
ITA Nos.155/2010 & 169/2010 Page 2 of 4
warrant and, therefore, the assessment made in consequence of such an
invalid search warrant, was itself invalid and was liable to be quashed.
3. The Tribunal, following the decision of this Court in the cases of
Dr. Nalini Mahajan & Others vs. Director of Income Tax
(Investigation) & Others:257 ITR 123, CIT vs. Pawan Kumar Garg in
ITA No.881/2008 decided on 16th January, 2009 and Prem Gandhi in
ITA No.90/2009 decided on 2nd March, 2009 accepted the plea taken by
the assessee and held that the Additional Director of Income Tax
(Investigation) was not authorized to issue the search warrant and
consequently the search warrant became invalid as did the assessment
which followed thereafter. In view of the fact that the entire proceedings
were held to be invalid, the other grounds taken by the assessee in his
appeal were not gone into by the Tribunal. Similarly, the Revenue’s
appeal was also not examined because the assessment itself had been
quashed on the first ground taken by the assessee before the Tribunal.
4. The learned counsel for the Revenue now points out before this
Court that by virtue of The Finance (No.2) Act, 2009, an amendment has
been introduced in Section 132(1) with retrospective effect from 1 st June,
1994 whereby the Additional Director has also been empowered to issue
warrants of authorization. In view of this amendment, the impugned
order is liable to be set aside and the matter is to be remitted to the
ITA Nos.155/2010 & 169/2010 Page 3 of 4
Tribunal to consider the appeals filed by the assessee as well as by the
Revenue on all the other grounds urged by the parties.
5. Consequently, we set aside the impugned order and remit the
matter back to the Tribunal with the direction that the Revenue’s appeal
before the Tribunal gets revived and so does the assessee’s appeal before
the Tribunal on all the other points originally urged before the Tribunal.
6. The appeals stand disposed of on these terms.
BADAR DURREZ AHMED, J
SIDDHARTH MRIDUL, J
FEBRUARY 16, 2010
dn
ITA Nos.155/2010 & 169/2010 Page 4 of 4