2009 (3) TMI 506 - HC - Income Tax

Search and Seizure-Block Assessment- The Assistant Commissioner issued the notice upon the petitioner to file a return of total income including the undisclosed income in the status of a company for the block period from April 1 1996 to October 28 2002 u/s 158BD(a) of the Income Tax Act 1996 to October 28 2002 under section 158BD(a) of the Act. The Assistant Commissioner dropped the proceedings the next proceedings was initiated by the Assistant Commissioner Circle 38 calling upon him to file a return of total income including undisclosed income in the status of a company for block period. Held that-allow the petition as the petitioner was required to file the return as company while the petitioner is an individual thus the status of the assessee is incorrectly described on the notice. Further without restoring the provisions contained in section 127 of the Act suo moto transfer of the file of the petitioner was arbitrary without jurisdiction and ex-facie illegal. Consequently the assumption of jurisdiction by the Assistant Commissioner of Circle 38 could not be sustained and also was illegal.

Issues Involved:
1. Correctness of the petitioner's status in the impugned notice dated August 31, 2007.
2. Proper recording of satisfaction under section 158BD of the Income-tax Act.
3. Validity of respondent No. 1 using the satisfaction of respondent No. 2.
4. Justification for directing the petitioner to file a fresh return.
5. Legitimacy of respondent No. 2's transfer of jurisdiction to respondent No. 1.
6. Proper assumption of jurisdiction by respondent No. 1 without following section 127 of the Act.

Issue-wise Detailed Analysis:

1. Correctness of Petitioner's Status:
The court noted that the term "status" refers to the standing of a person before the law, as defined under section 2(31) of the Income-tax Act. The petitioner was previously accepted as an individual by the Department, evidenced by the assessment order for the year 2004-05. However, the impugned notice dated August 31, 2007, incorrectly described the petitioner as a company. The court concluded that since the Revenue had accepted the petitioner's status as an individual, the notice describing the petitioner as a company was "ex facie bad and illegal."

2. Proper Recording of Satisfaction:
Section 158BD requires the Assessing Officer to be satisfied that undisclosed income belongs to a person other than the one searched. The satisfaction recorded by respondent No. 2 was scrutinized, revealing a mere listing of seized items and an affidavit from the petitioner. The court emphasized that satisfaction must be independent and subjective, reflecting a thoughtful process, which was absent in this case. Thus, the recorded satisfaction was deemed improper.

3. Validity of Using Another Officer's Satisfaction:
The affidavit revealed that only respondent No. 2 had recorded satisfaction, not respondent No. 1. Section 158BD necessitates the satisfaction of the Assessing Officer taking action. Hence, respondent No. 1 could not rely on the satisfaction of respondent No. 2. The court referenced the Hynoup Food and Oil Industries Ltd. case, affirming that the officer issuing the notice must independently record satisfaction. Consequently, the proceedings were declared illegal.

4. Justification for Filing a Fresh Return:
The petitioner had already filed a return in response to the notice dated August 18, 2005. The court ruled that respondent No. 1 could not request a fresh return without invalidating the earlier notice. Citing the Indian Tube Co. Ltd. case, the court held that once a return is filed in compliance with an earlier notice, no further notice under section 158BD could be issued for another return. Therefore, the notice dated August 31, 2007, directing a fresh return was unjustified.

5. Legitimacy of Transfer of Jurisdiction:
Respondent No. 2 dropped the proceedings and transferred the case to respondent No. 1, claiming lack of jurisdiction. The court examined whether such a transfer could occur without following section 127 of the Act, which governs the transfer of cases. The court cited K. P. Mohammed Salim, asserting that section 127 applies to block assessments. The transfer without adhering to section 127 was deemed arbitrary and illegal.

6. Proper Assumption of Jurisdiction:
The court reiterated that the transfer of jurisdiction by respondent No. 2 to respondent No. 1, and the subsequent assumption of jurisdiction by respondent No. 1, were not in compliance with statutory provisions. The impugned notice dated August 31, 2007, was thus unsustainable and illegal.

Conclusion:
The court concluded that the impugned notice dated August 31, 2007, was invalid due to incorrect status, lack of proper satisfaction, improper reliance on another officer's satisfaction, unjustified request for a fresh return, illegitimate transfer of jurisdiction, and improper assumption of jurisdiction. The notice and consequential steps were set aside and quashed. The writ petition was allowed, with no order as to costs.

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