Monday, 30 May 2016

The HON’BLE HIGH COURT OF ORISSA in U. K. Mahapatra & Co. v ITO (WP(c)


The HON’BLE HIGH COURT OF ORISSA  in U. K. Mahapatra & Co. v ITO (WP(c)


                                                 



No. 14018 of 2008) Dated: October 29, 2008, while holding  that the  IT authority does not assume any power to enter the business premises/Office of the CA/Lawyer/Tax Practitioner to conduct survey under section 133A of IT Act in connection with survey of the premises of their client unless the client state in the course of survey that his books of account/documents and records are kept in the office of his CA/ Lawyer/Tax Practitioner made the following observations:

Section 133A makes it clear that the place to which an income tax authority can enter should either be a place within the limits of the area under the jurisdiction of the said Income-tax authority or any place occupied by any person in respect of whom he exercises jurisdiction or any place in respect of which he is authorised for the purpose of the said section by such income tax authority who is assigned the area within which such place is situated or who exercises jurisdiction in respect of any person occupying such place. In either ease, the place should be one where the business or profession of assessee is carried on.

 It is immaterial whether the place of business is the principal or additional or subsidiary place of business of profession of a person in respect of whom survey under section 133A is intended. However, explanation below Sub-section (1) of section 133A of the I. T. Act clarifies that a place where business or profession is carried on shall also include any other place whether any business or profession is carried on therein or not in which the person carrying on business or profession states that any of his books of account or documents or any part of his cash or stock or any other valuable article or thing relating to his business or profession are of is kept. Thus at the time of survey, if the concerned person states that any of his books of account or documents or any part of his cash or stock or any other valuable article is or are kept in the office of his Chartered Accountant or Advance or Income-tax Practitioner the Survey Officer can enter such office for the limited purpose of inspecting those books of account or other documents.

 Similarly if the concerned person states at the time of survey that his books of account or documents or cash or stock or any other thing/article relating to his business or profession are kept in his residential premises or in the premises of some other person, the Survey Officer can enter those premises for the limited purpose of inspecting those books of account or other documents or cash or stock or any other article or thing relating to the business or profession of such person. Thus, the precondition for conducting survey U/s 133A in the premises of a Chartered Accountant, lawyer, Tax Practitioner in connection with survey of the business place of their client is that the client in course of survey must state that his books of account/documents and records are kept in the office of his Chartered Accountant /Lawyer/Tax practitioner. Unless this precondition is fulfilled, the I.T. authority does not assume any power to enter the business premises/office of the Chartered Accountant lawyer/Tax Practitioner to conduct survey under Section 133A of I.T. Act in connection with survey of the premises of their client.

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