TMI Blog2011 (4) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 15-4-2011 - HARSHA DEVANI MS., BELA TRIVEDI MS. JJ. JUDGMENT Ms. Harsha Devani J.- 1. By this petition under article 226 of the Constitution of India, the petitioner has challenged the notice dated March 1, 2001, issued by respondent No. 2 under section 158BD of the Income-tax Act, 1961 ("the Act"). The facts of the case as appearing in the petition are that the petitioner, an individual, who is being assessed to tax as such for the last several years under the Act, is engaged in the business of transport of goods at 2. Ahmedabad. It is the case of the petitioner that the petitioner's nephew, Atulbhai, had gone to Deesa on September 22, 1998, for purchase of a second-hand truck. As, according to Atulbhai, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aware that there was an income-tax search at the premises of Bansi Finance. The said monies and chit were seized by the raiding party. A statement of Nandkishore was recorded on September 22, 1998. 3. On coming to know that the monies had been so seized by the income tax authorities, Atulbhai returned to Ahmedabad without purchasing the truck. On September 29, 1998, Atulbhai addressed a letter to the Director of Investigation, wherein he mentioned his permanent account number and, inter alia, stated that he had submitted his returns of income for and up to the assessment year 1997-98 with the Assessing Officer, Ward 8(2). That he had generated substantial revenue from his transport business and that the same was being regularly accounte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 158BD of the Act dated March 1, 2001, requiring the petitioner to prepare a true and correct return of total income including the undisclosed income in respect of which the petitioner is assessable for the block period starting from April 1, 1988, to March 31, 1998, and April 1, 1998, to September 22, 1998, that is, till the date of search. Being aggrieved, the petitioner has filed the present petition challenging the above referred notice. 6. Mr. J. P. Shah, learned advocate appearing on behalf of the petitioner, invited attention to the provisions of section 158BD of the Act to submit that the basic requirement of the said section is that the Assessing Officer of the searched party is required to be satisfied that undisclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 158BD of the Act could have been recorded by him. It was further submitted that notice under section 158BD has also been issued to Atulbhai hence, it is apparent that the requisite satisfaction has not been recorded by the Assessing Officer of the search party inasmuch as the said amount cannot be the undisclosed income of both the petitioner as well as Atulbhai. In conclusion, it was submitted that the impugned notice having been issued without satisfying the requirements of section 158BD of the Act is without jurisdiction and deserves to be quashed and set aside. 8. On the other hand, Mr. M. R. Bhatt, senior advocate, learned counsel for the respondents has supported the impugned notice. The attention of the court was drawn to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the learned counsel for the respondents to produce the same for the perusal of the court. Pursuant thereto, Mr. M. R. Bhatt has placed on record a communication dated January 1, 2001, issued by respondent No. 1 to the Income-tax Officer, Ward 3(4), Ahmedabad, whereby he has forwarded the papers stated therein to him for necessary action. 10. Considering the fact that the principal contention raised in the present petition is that the necessary satisfaction as envisaged under section 158BD of the Act has not been recorded by the Assessing Officer of Bansi Finance, it may be germane to reproduce the relevant part of the aforesaid communication which reads thus : "2. An action under section 132(1) has been carried out in the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of search, Rs. 2 lakhs had been seized from the custody of Shri Nandkishore M. Thakkar who is an employee of the petitioner. Thereafter, the Assessing Officer has referred to the statements of Shri Chandubhai A. Thakkar and Shri Atulbhai A. Thakkar recorded on November 15, 2000, as well as replies given by the said persons in relation to certain queries. Thereafter, the Assessing Officer has merely stated that petitioner is assessed by the Income-tax Officer and has forwarded the papers referred thereto to him. In the entire communication, there is nothing to indicate any satisfaction having been recorded by the Assessing Officer of the person with respect to whom the search was made to the effect that Rs. 2 lakhs seized during the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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