- (1.) WE have heard Shri R.K. Upadhyay for the revenue. Shri Rajesh Gupta appear for the Respondent -Assessees.
(2.) THESE Income Tax Appeals under Section 260A of the Income Tax Act 1960, (the Act) arise out of the orders of the Income Tax Appellate Tribunal (ITAT) following the Division Bench judgment of this Court in Commissioner of Income Tax v. Smt. Vandana Verma : (2011) 330 ITR 533(All), in which it was held that since the warrant of authorisation under Section 132(1) of the Act was issued in the joint names of Mr. Mudit Verma and Mrs. Vandana Verma, who were husband and wife living together in a single premises, it was not open for the A.O. to assess Mrs. Vandana Verma alone on the basis of the assets and documents seized during the course of search by invoking the provisions of Chapter XIV -B, in an individual capacity. The ITAT has quashed the assessment order on the ground that the assessment order in the name of individuals could not be made when the warrant of authorisation was issued in the joint names of Ashok Chawla, Smt. Madhu Chawla and Shri Anuj Chawla.
(3.) THE revenue has raised following questions of law to be considered by this Court: 1. Whether the Hon'ble ITAT was justified in law in dismissing the revenue appeal by ignoring the legal position that in order to be assessed in the status of AOP/BOI there should exist any evidence establishing the status of the Assessee as AOP/BOI as No. evidence has neither been found during the course of search nor submitted by the Assessee. 2. Whether the Hon'ble ITAT was justified in law in dismissing the appeal of the department by ignoring the settled position of law as held by the various courts, including apex court, that in order to be an AOP there must be a volition on the part of members forming the AOP to produce profit from a common source of income. In the present case neither there was any such evidence found nor submitted by the Assessee. 3. Whether the Hon'ble ITAT was justified in law in creating a status of AOP de -novo ignoring the fact that essential ingredient required for existence on an AOP is not found during the course of search. Therefore, mere putting more that one name in an instrument like warrant of search, cannot substitute for any evidence to establish formation of AOP. The ITAT has thus erred in disregarding the ratio laid down by the Hon'ble Jurisdictional High Court in the case of Raghuraj Pratap Singh and Ors. v. ACIT : (2008) 307 ITR 450 (Alld.). 4. Whether the Hon'ble ITAT was justified in disregarding the provisions of Section 153A which require proceedings to be initiated in case of persons searched Under Section 132 of the Income Tax Act.;