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2008 (6) TMI 574 - GUJARAT HIGH COURTUnaccounted transaction - between partners and/or persons connected - searched u/s. 132 - Validity of notice issued u/s 158BC - warrant of authorisation - ascertaining whether there was any material with the respondent authority to even prima facie come to the conclusion that an entity by the name of M/s Jalaram Theatre existed as a partnership firm. HELD THAT:- In the present case, from the record of the respondent authority and the facts which have come on record of this petition it becomes apparent that the prerequisite conditions empowering the AO to exercise the powers for issuing notice u/. 158BC of the Act are not fulfilled. During course of hearing reliance had been placed on a draft document relating to proposed sale of property known as Jalaram Theatre for a sum to submit that the said document was unearthed during course of survey leading to belief that there was unaccounted transaction in property. The said document, on a bare perusal, cannot assist the case of the respondent. Firstly, the said document is not signed by anybody, neither the sellers nor the purchasers. The document reflects proposed transaction of an immovable property. The law enjoins every person to compulsorily register a document involving transfer of immovable property valued at more than ₹ 100 and hence in absence of any other corroborating evidence that such a transaction took place between the parties the Court is not expected to raise a presumption that a transaction took place in violation of the law of the land. However, apart from the fact that there are eight purchasers and six sellers and none of the parties have appended their signatures to the document, what is most material is the fact that the vendors are the six petitioners who are described to be co-owners of the immovable property. Thus, even if for the sake of argument the document in question is treated as a relevant piece of evidence only for the purpose of initiating proceedings, even then no entity by the name of M/s Jalaram Theatre, a partnership firm, is mentioned in the document belying the claim of the respondent authorities to the contrary. The document supports the stand of the petitioners that the petitioners are co-owners and are deriving rental income from the property which has duly been reflected in their respective returns of income. Therefore, it is apparent that the action of the respondent authority in issuing impugned notice u/s. 158BC of the Act, cannot be sustained. Accordingly, the said notice u/s. 158BC of the Act, is hereby quashed. The petition is allowed accordingly. Rule made absolute. There shall be no order as to costs.
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