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2015 (8) TMI 268 - HC - Income TaxValidity of proceedings initiated under s. 158BD - time barred - Held that:- The basic premise on which this contention is raised is that the assessment completed against the AOP is under s. 158BC. However, the assessment completed against the person other than the person searched can only be under s. 158BD of the Act. Yet another contention raised is that the notice issued to the AOP mentions only s. 158BC. Though, it is factually true, the question is whether the proceedings initiated under s. 158BD by issuing notice mentioning s. 158BC is a legally tenable one or not. In our view, the answer has to be in the affirmative and our conclusion is justified by the principles laid down by a Division Bench of this Court in CIT v. Lekshmi Traders [2010 (11) TMI 467 - KERALA HIGH COURT ] where it has been held notice should be issued in the name of the assessee proposed to be assessed and in the case of an AOP, to the principal officer or any member thereof and serve notice on such person to represent the AOP. In this case, admittedly, notice was received by the respondent assessee, and one of the members of the AOP filed return pursuant to the notice, in Form 2B on behalf of the AOP. In ether words, when the assessee admits receipt of notice and files its proper return in the prescribed form in terms of the notice, we do not think that the assessee is entitled to contend that the notice is not served in accordance with the procedure prescribed under the above sections. As far as the contention that the records were not transferred, we wonder, how such a contention can be raised by an assessee, because unless the records were transferred, the jurisdictional AO could not have issued the notice. Therefore, we are not prepared to accept this contention raised by the assessee. As far as the contention that the AO has not recorded his satisfaction, as rightly found by the Tribunal in Annex. D order, Annex. A assessment order itself contains the satisfaction of the AO and the relevant part of Annex. A has been extracted in the earlier part of this judgment. Therefore, we are unable to accept this contention either. Third contention raised is that the AO should not have resorted to an estimation of the income. While it is true that pure estimation of the income is impermissible in a proceedings under s. 158BD. the question as to whether such estimation has been done in this case has to be gathered from the materials before this Court a reading of the above shows that it was based on the statement made by Sri Shinde himself that the AO concluded that for the eight months period from June 1998 to January 1999 the escaped income was ₹ 4,80,000. Therefore, the quantification has been done only based on the statement given by none other than late Sri Shinde himself. Facts being so, the AO cannot be accused of having resorted to any estimation by himself. Even apart from this, in a proceedings under s. 158BC or s. 158BD, certain amount of estimation is permissible and this has been recognised in CIT v. Hotel Meriya [2010 (5) TMI 556 - Kerala High Court] - Decided against assessee.
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