TMI Blog2004 (9) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... s against the deletion of the entire undisclosed income of Rs. 12,60,000 ignoring the fact that the assessee s husband was the de facto owner of M/s. Mayur Trading Company and also the fact that it was based on the voluntary declaration of the assessee s husband. In her Cross Objection, the assessee has raised a ground to the effect that it was not a valid assessment order as the search warrant was not in the name of the assessee. 3. The assessee, an individual, is the Proprietress of M/s. Mayur trading Company, which is engaged in the wholesale business of potatoes and onions on commission basis and she is regularly assessed to tax. Her husband Shri Vishwamber Waman is the Proprietor of M/s. Waman Pimple Co., who also is doing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber Waman that though his wife was the Proprietress of M/s. Mayur Trading Company, he attends the business and also stated that there was a difference in the balance sheet of M/s. Mayur Trading Company to the extent of Rs. 12.60 lakhs. Since the assessee had responded to the notice under section 158BC by filing her return of income and it participated in the proceedings, the Assessing Officer held that the assessee was estopped from raising any technical objection. So, he brought the difference of Rs. 12.60 lakhs to tax as the undisclosed income of the assessee. 4. The same objection was raised by the assessee before the Commissioner of Income-tax (Appeals). The CIT(A) held that since the assessee was having her proprietary business at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any person. According to the Assessing Officer, since there is reference to the expression any person in section 158BA(1), Chapter XIVB applies to any person even where a search has not been conducted on him. In our view, the Assessing Officer has misread the provision. The Assessing Officer gets the power to make an assessment under Chapter XIVB as a result of search carried out under section 132 of the Act. As per the provisions of section 132(1), the primary target is the person who is in possession of any undisclosed income. In that event, the search party can enter and search any building, place, vessel, vehicle or aircraft where the undisclosed assets or incriminating documents are likely to be found in relation to such person. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer would have been to issue a notice under section 158BD of the Act. When specific procedures are prescribed for persons who are searched and for other persons in respect of whom incriminanting material is found, the Assessing Officer cannot arrogate himself to bypass the prescribed procedures and issue notice under section 158BC of the Act on a person who was not subjected to search. Moreover, we also reject the contention of the Assessing Officer that the assessee could not have raised this objection since she had acquiesced in the proceedings. In our view, the assessee cannot concede jurisdiction to the assessing authority which is not prescribed by law. Her participation in the proceeding was merely a technical compli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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