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2016 (6) TMI 207 - AT - Income TaxValidity of notice / proceedings u/s.158BD - recording of the satisfaction by the AO - AO of the searched person himself is not sure as to under which provision of the Act, action should be taken - Held that:- In the instant case, the paper was seized from the place of Shri Tayyab Habib Chotani during the course of search which contain the amounts received in cash by him. He has already admitted such cash as his undisclosed income, a fact recorded by the CIT(A) and not disputed by the Revenue. Further, the satisfaction note sent by the AO of Shri Tayyab Habib Chotani to the AO of Shirish C. Karis speaks of action to be taken u/s.158BD/148. Therefore, we find merit in the submission of the Ld. Counsel for the assessee that the AO of the searched person himself is not sure as to under which provision of the Act, action should be taken. In our opinion, since the paper was found containing cash payments and cheque payments received by Shri Tayyab Habib Chotani from Shri Shirish C. Karia and Shri Tayyab Habib Chotani has admitted such unaccounted cash as his undisclosed income, therefore, there remains no undisclosed income belonging to any other person other than the searched person. Under these circumstances, the proper course of action here should have been notice u/s.148 and not notice u/s.158BD since the AO of the searched person himself is not sure as to how and under which provisions the notice should be issued. Thus as Shri Tayyab Habib Chotani has already admitted such cash payments as his undisclosed income, therefore, the provisions of section 158BD cannot be applied to the case of the assessee and the proper course of action should have been issue of notice u/s.148. We therefore find merit in the submission of the Ld. Counsel for the assessee that the notice in the instant case could have been issued only u/s.148 and not u/s.158BD. Therefore, the additional ground raised to be decided in favour of the assessee.
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