Rakesh Garg, J. - (1.) A search was conducted on 23rd July, 2002, at the premises of Mohar Singh, father of respondent. However, it is pertinent to mention here that the said Mohar Singh had died on 20th June, 2002. Some incriminating documents were found at his residence. On the basis of these facts, a notice under Section 158BC of the IT Act, 1961 (hereinafter referred to as the 'Act'), was issued by the AO on 20th May, 2004 and the same was served upon Sh. Rakesh Kumar as legal heir of Mohar Singh. He was required to furnish the return of income for the period 1st April, 1996 to 23rd July, 2002. The legal heir did not file any return. The AO completed the assessment under Section 158BC(c)/144 of the Act vide his order dt. 30th July, 2004. However, in appeal of the assessee, the learned CIT(A) held the assessment framed under Section 158BC as null and void while observing as under: Keeping in view all the facts and circumstances of the case, it is held that the order passed by the AO, under Section 158BC(c)/144 of the Act on 30th July, 2004, was illegal and void ab initio because the same was passed in consequence to a search warrant, issued under Section 132, in the name of a dead person. Such search warrant was against the laws of natural justice. No valid assessment could have been made, on the strength of such an invalid search warrant. Hence, the impugned order was quashed.
(2.) THE appeal filed by the Revenue against the order of the CIT(A), dt. 14th Feb., 2005 was also dismissed by the Tribunal vide order dt. 31st Jan., 2007. While dismissing the appeal of the Revenue, the Tribunal relied upon the judgement of the Hon'ble Delhi High Court in the case of R.C. Jain through LR v. CIT, (2004) 190 CTR (Delhi) 34 wherein it has been held that where the Department has commenced proceedings under Section 158BC of the Act, against a dead person, despite knowledge of his death and that too before expiry of the period allowed to the assessee for filing the return, then there was violation of the principles of natural justice as well as the provisions contained in the Act, and therefore, the assessment is liable to be quashed. Feeling aggrieved against the said order dt. 31st Jan., 2007 passed by the Tribunal, New Delhi Bench 'E' in ITA No. 173/Del/2005, the Revenue has filed the present appeal raising the following substantial questions of law : (i) Whether on the facts and in the circumstances of the case, the learned Tribunal was right in law in holding that search was invalid ? (ii) Whether on the facts and in the circumstances of the case, the learned Tribunal was right in law in holding that the authorization issued for conducting the search was invalid and void ab initio?
(3.) SH . Sanjeev Kaushik, learned Counsel for the Revenue, has vehemently argued that while considering the facts of the present case, the Tribunal has not appreciated the fact that the issues involved in the present case is altogether different from the case of R.C. Jain through LR v. CIT (supra) i.e. judgement of the Hon'ble Delhi High Court and the same is not applicable to the facts and circumstances of the present case. Learned Counsel has further argued that during search on 23rd July, 2002 it came to the knowledge of the Department that Sh. Mohar Singh had expired on 20th June, 2002 and, therefore, by necessary implication, the search warrants were served upon the LRs and the assessee has not challenged the legality of the search warrants before the competent authority. It has been further argued that even the illegality of the search, does not vitiate the evidence, collected during such search. The learned Counsel has placed strong reliance on the judgments reported as Dr. Partap Singh v. : 1986CriLJ824 , Pooran Mal v. : [1974]93ITR505(SC) and New Street Oil Mills v. State of Kerala, 1978 CTR (Ker) 56 : : (1978) 111 ITR 463.;