2007 (9) TMI 296 - AT - Income Tax

Validity of the block assessment order - Search And Seizure - pre-requisite condition for completing the assessment u/s 158BD - Notice u/s 143(2) - HELD THAT - From the order of learned first appellate authority it is clear that even before him the Department could not produce the satisfaction recorded by the AO in the case of person searched. From the said order it is also clear that intimation regarding undisclosed income of the assessee was given to the AO of the present assessee after the issuance of notice. Thus on facts the argument of the learned counsel for the assessee have remained uncontroverted. So far as the legal position is concerned in the case of Manish Maheshwari 2007 (2) TMI 148 - SUPREME COURT the Hon ble Supreme Court has held that satisfaction is a pre-requisite condition for completing the assessment u/s 158BD. The ld DR has not been able to cite any authority contrary to the decisions referred. Hence we hold that the assessment order passed in the instant cases without making compliance of the pre-requisite condition i. e. recording of satisfaction cannot be legally justified. Hence on this basis itself the assessment is liable to be quashed. We accordingly quash the assessment order. Time limitation for issuance of Notice u/s 143(2) - In view of the authority the Tribunal Delhi Bench in the case of Smt. Tulika Mishra (to which both of us were parties) 2007 (3) TMI 747 - ITAT DELHI has quashed the assessment order on the ground that the notice u/s 143(2) was not served upon the assessee within the prescribed period. On this ground we have held the assessment order to be null and void in that case. Hence following the same decision we declare the assessment order as null and void in this case also because notice u/s 143(2) was not served upon the assessee within the prescribed period. Hence on this ground also the assessment order is liable to be quashed. The same is accordingly quashed. Thus the legal grounds taken in the cross-objection stand allowed - Since we have quashed the assessment order by allowing legal grounds raised by the assessee we are not required to consider other grounds raised in the cross-objection. In the result appeal of the Revenue stands dismissed and the cross-objection of the assessee is allowed.

Summary

Issues Involved:
1. Validity of the block assessment order.
2. Recording of satisfaction by the Assessing Officer (AO) under Section 158BD.
3. Issuance and service of notice under Section 143(2) within the prescribed period.

Detailed Analysis:

1. Validity of the Block Assessment Order:
The assessee challenged the validity of the block assessment order passed under Sections 158BD/143(3) of the Income Tax Act, 1961, arguing that it was without jurisdiction, bad in law, and void ab initio. The CIT(A) had held that the AO assumed valid jurisdiction under Section 158BD, but the assessee contended that the block assessment was completed without serving a proper, legal, and valid notice under Section 143(2), rendering the order illegal and bad in law.

2. Recording of Satisfaction by the AO under Section 158BD:
The assessee argued that no satisfaction was recorded by the AO who completed the assessment under Section 158BC before transmitting the record to the concerned AO, and that any satisfaction was recorded after the issuance of notice under Section 158BD. The Tribunal noted that the CIT(A) observed that the reasons recorded by the AO of the Bagaria group of cases were not available and that the notice under Section 158BD was issued before the intimation regarding the assessee's undisclosed income was given to the AO of the present assessee. This was uncontroverted by the Department.

The Tribunal relied on the Supreme Court decision in Manish Maheshwari vs. Asstt. CIT, which held that satisfaction is a prerequisite for completing the assessment under Section 158BD. The Tribunal also referenced decisions from the Delhi High Court in Amity Hotels (P) Ltd. vs. CIT & Ors., the Gujarat High Court in Nitin P. Shah alias Modi vs. Dy. CIT, and the Chandigarh Bench of the Tribunal in Kishore Lal Balwant Rai & Ors., which supported the requirement of recording satisfaction before initiating proceedings under Section 158BD.

The Tribunal concluded that the assessment order was not legally justified due to the lack of recorded satisfaction and quashed the assessment order on this basis.

3. Issuance and Service of Notice under Section 143(2):
The assessee filed the return on 14th May 2001, and the notice under Section 143(2) was issued on 1st April 2003, beyond the prescribed period. The Tribunal noted that the CIT(A) had rejected the assessee's plea by relying on the Special Bench decision in Nawal Kishore & Sons Jewellers vs. Dy. CIT, which held that the time limit for issuance of notice under Section 143(2) is not applicable in block assessments.

However, the Tribunal found the Gauhati High Court's decision in Smt. Bandana Gogoi vs. CIT & Anr., which held that notice under Section 143(2) is mandatory in block assessments, to be directly on point. The Tribunal followed this decision and the Delhi Bench's decision in Smt. Tulika Mishra vs. Jt. CIT, which quashed the assessment order due to the notice not being served within the prescribed period.

The Tribunal declared the assessment order null and void on this ground as well and quashed the assessment order.

Conclusion:
The Tribunal allowed the cross-objection of the assessee by quashing the assessment order on both grounds: lack of recorded satisfaction and improper service of notice under Section 143(2). Consequently, the appeal of the Revenue became infructuous and was dismissed. The cross-objection of the assessee was allowed, and the assessment order was quashed.