Question And Answer
Subject: Questions about order passed without and search conducted as a case of mistaken identity as detailed below
Querist: Suresh Goyal
Answered by:
Tags: ,
Date: April 30, 2023
Query asked by Suresh Goyal

Dear Sir,

Please give your view and guide us:

  1. Order for A.Y. 2010-11 to 2019-20 have been passed on 24.04.2021 after taking approval on 23.04.2021. On 24.04.2021, it was Saturday. DIN was intimated to the assessee on 31.05.2021 mentioning in the letter that order has been passed on 31.05.2021. The body of the assessment order does not contain DIN. As per circular no.19 dated 14.08.2019, the maximum number of days for generating DIN is 15 days. The AO issued another letter dated 26.07.2021 mentioning that order has been passed on 24.04.2021 and generated another DIN for order passed u/s 153A.

Whether the above order is valid as the body of the order does not mention DIN and DIN was generated on 31.05.2021, after 15 days which is in contravention of rules of circular no.19 dated 14.08.2019. Further, later on, two DIN has been created i.e. on 31.05.2021 and 26.07.2021?

  1. Assessee order for A.Y. 2009-10 was passed on 25.06.2021 after taking approval on the same date and DIN was generated on 25.06.2021.

Whether the above order for A.Y. 2009-10 can be held valid as approval has been taken on the same date of generation of DIN?

  1. Summon u/s 131(1A) was issued on 05.02.2019 and search was also conducted on 05.02.2019. Panchnama was not drawn in the name of the assessee. Copy of search warrant was not provided to the assessee in spite of reputed request. Panchnama was in the name of third party instead of assessee.

Whether the search conducted on 06.02.2019 are valid keeping in view the above facts mentioned in point no.3?

With Regards,

CA S.K. Goyal

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Answer given by

Whether search is valid or not can be decided by the High Court by filing writ petition . Appellate Authority has jurisdiction to decide the validity of the search . Assuming the search is illegal evidence collected can be used against the assessee. Refer , Dr. Pratp Singh and Anr v. Director of Enforcement and ors (1985)155 ITR 166 (SC)
“Illegality of a search does not vitiate the evidence collected during such illegal search. The only requirement is that the Court or the authority before which such material or evidence is placed has to be cautious and circumspect in dealing with such material or evidence”

The order passed without DIN number is not valid in law. The said order can be challenged by writ petition or by filing an appeal.

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