There is a common notion that power to conduct income tax survey is limited to the business premises.
In an offshoot of search case the department also carried out survey at the residential premises of one ex employee of the assessee in [2023] 21 ITR-OL 634 (Ker) and recovered/impounded a few account statements/ledger and three pen drives from his custody which was objected to with the stance that the survey conducted at the residential house violate the provisions of section 133A.
Drawing their conclusion from the reading of explanation to section 133A misreading it as having been introduced w.e.f. April 1, 2017 the Court held that the words ‘place of survey would also include any other place where any business or profession and activity for charitable purpose is carried on or not’ suggests that there is no exception for residence. Whereas the clear reading of explanation to section 133 A states that “…in which the person carrying on the business or profession states that any of his books of account or other documents or any part of his cash or stock or other valuable article or thing relating to his business or profession are or is kept.” So unless the person states that books of account or other documents are kept in his residence, the word “residence” cannot be dragged to fall under “any other place” generally. There is a pre-condition for inclusion in “any other place” and it does not generally apply to any other place.
The SC has also summarily dismissed the SLP filed in this case. [2023] 453 ITR 749 (SC)
These judgements overlook
- the age old department circular No 7-D (LXII) dated 3–5-1967 whereby the place where an entry can be made u/s 133A must not be a place where the assessee business does not carry on any business.
- That the Explanation in 133A is not introduced by Finance Act, 2017 with effect from April 1, 2017 but only activity for charitable purpose is also inserted w.e.f. April 1 , 2017 to widen its scope.
However in these WFH times to gain entry even into residential premises of the the employees may be inevitable subject to pre-condition (supra)