TMI Blog2013 (3) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Since all the appeals are arising out of the same order of the CIT(A), we heard the same together and dispose of the same by this common order. 2. Shri CBM Warrier, the ld. representative for the taxpayer submitted that there was a search u/s 132 of the Act on 18-12-2012 at the residence of Shri T.J Geoge Shri C.P. David. On the basis of the incirminating materials said to be found at the residence of Shri T.J Geoge Shri C.P. David, proceedings u/s 158BD were initiated against the taxpayer by issuing notice u/s 158BD of the Act on 20-03-2006. According to the ld. representative, the taxpayer is under the jurisdiction of the ITO, Wd.2, Thodupuzha. The Dy. CIT, Cent.Cir.2, Ernakulam is not having jurisdiction over the taxpayer. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued within a reasonable period. The ld. DR has also argued the matter with regard to the merit of the additions made by the assessing officer. 4. We have considered the rival submissions on either side and also perused the material available on record. The main contention of the ld. representative for the taxpayer is that initiation of proceedings after lapse of one year and three months from the date of completion of the assessments in the case of persons searched is arbitrary. Therefore, the assessment order cannot stand in the eyes of law. We find that the Kerala High Court in the case of CIT vs Bimbis Creams Bakes (2012) 254 CTR 633 (Ker) had an occasion to consider this issue. In the case before the Kerala High Court, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of completion of the assessments in respect of the persons searched is not reaosnable? 6. We find that this bench of the Tribunal in A.C.I.T. vs Cicy P Thomas in IT(SS) A No.32/coch/2007 C.O. No.37/Coch/2007 order dated 22-12-2011 had an occasion to consider this issue elaborately. After considering the provisions of section 132(9A) of the Act, it was found that the officer, who conducted the search has to examine the document within 60 days and if the document does not relate to the person against whom search was conducted, he has to hand over the same to the concerned officer who is having jurisdiction over the persons against whom the material was found. The Tribunal found that this is the first available opportunity to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire provisions of section 132 and 158BC and 158BD of the Act has observed as follows at page 97 of the ITR: the Assessing Officer, once he reaches the requisite satisfaction, is bound to act swiftly to proceed against such other person as soon as may be in reasonable time. The speed and despatch with which he should act is writ large on the connected provisions of section 132(9A) of the Act under which the authorised officer who has no jurisdiction over the person referred to in clause (a), (b) or (c) of sub-section (1) of section 132 has to hand over the books of account, documents and assets seized to the Income-tax Officer having jurisdiction over such person within 15 days of such seizure and the Assesing Officer is requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings under s.158BD against the respondent-assessee i.e. along with s.158BC assessments initiated against the group of concerns searched by the Department. Senior counel for the Revenue submitted that there is no time limit prescribed under the Act for issuance of notice under s.158BD and according to him, the AO has to first complete the assessment that gets time barred first and then proceed to make assessment under s.158BD later. Besides finding force in this contention, we also feel that it is only on completion of assessment under s.158BC on the searched assessee the AO can conclude that the remaining income in respect of which details were collected during search could be assessed in the hands of other assessees. In fact, bifurcation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Act does not envisage that the notice u/s 158BD could be issued at any point of time. Therefore, by respectfully following the judgment of the Kerala High Court in the case of Bimbis Creams Bakes (supra) and the judgment of the Gujarat High Court in the case of Khandubhai Visanji Desai Os (supra) we hold that the issue of notice u/s 158BD after expiry of one year and three months is arbitrary and unreasonable. Accordingly, the consequential order passed by the assessing officer cannot stand in the eyes of law. Hence, the same is quashed. 10. In the result, appeal of the taxpayer in IT(SS)A No.01/Coch/2011 is allowed and the appeals of the revenue in IT(SS)A. No.02 03/Coch/2011 are dismissed. Order pronounced in the open co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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