TMI Blog2013 (7) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided against Revenue. - Tax Appeal No. 192 of 2012 - - - Dated:- 6-5-2013 - Akil Kureshi And Sonia Gokani,JJ. For the Petitioner : Mr. KM Parikh, Advocate For the Respondent : Mr. Manish J. Shah, Advocate JUDGMENT (Per : Honourable Ms. Justice Sonia Gokani) 1. Aggrieved by the order of the Income Tax Appellate Tribunal for the block period between 1.4.1995 to 19.12.2001, this Tax Appeal is preferred under section 260A of the Income Tax Act, 1961 ( the Act for short) proposing following substantial question of law for our consideration : Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in quashing and setting aside the notice under section 158BD of the Act as well as the assessment order passed under section 158BD of the Act passed in the case of the assessee by holding that reasons recorded for issue of the notice under section 158BD of the Act by Assessing Officer to the assessee cannot be said to be valid satisfaction for issue of notice under section 158BD of the Act and thereby ignoring the findings on the basis of the seized documents by the Assessing Officer that certain undisclosed income belongs to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of the notice to the assessee respondent. 6. We have heard learned counsel Shri K.M. Parikh for the department who has fervently argued before us that the Assessing Officer Shri A.K. Sinha was the Assessing Officer in case of both, searched and non searched assessees. He also further urged that the satisfaction recorded by the Assessing Officer in case of present assessee shall have to be construed in case of searched assessee only. The Tribunal incorrectly appreciated the law on the subject and also did not aptly apply the correct ratio to the facts of the case of the assessee. Therefore, the order requires interference. 7. Learned senior counsel Shri J.P. Shah appearing for the assessee respondent relying on various case laws has urged that this appeal deserves no consideration on merits inasmuch as the mandatory requirements as set out by the Apex court in case of Manish Maheshwari v. Asst. Commissioner of Income-tax and another reported in (2007) 289 ITR 341(SC) have not been fulfilled. He further urged that the Tribunal while dealing with the issue in question has appropriately scanned the entire materials and has rightly arrived at a correct decision which calls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll proceed to determine the undisclosed income of the block period in the manner laid down in section 158BB and the provisions of section 142, sub-section(2) and (3) of section 143, [section 144 and section 145] shall, so far as may be, apply; (c) the Assessing Officer, on determination of the undisclosed income of the block period in accordance with this Chapter, shall pass an order of assessment and determine the tax payable by him on the basis of such assessment; (d) the assets seized under section 132 or requisitioned under section 132A shall be dealt with in accordance with the provisions of section 132B. The Assessing Officer is authorised under section 158BD provision when he finds any undisclosed income emerging from record in case of the person who is not searched, while carrying out the search to transfer entire material to the Assessing Officer having jurisdiction over such person, on recording his satisfaction. 10. The Apex Court in the case of Manish Maheshwari v Asst. Commissioner of Income-tax and another (supra) had examined the provisions of Section 158BD of the Income Tax Act where the premises of a director of a company and his wife were searched under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Deputy Commissioner of Income-tax and another reported in (1999) 236 ITR 73, wherein this Court held thus : This provision indicates that where the Assessing Officer, who is seized of the matter and has jurisdiction over the person other than the person with respect to whom search was made under sec. 132 or whose books of account or other documents or any assets were requisitioned under sec. 132A, shall proceed against such other person as per the provisions of Chapter XIV-B which would mean that on such satisfaction being reached that any undisclosed income belongs to such other person, he must proceed to serve a notice to such other person as per the provisions of sec. 158BC of the Act. If the Assessing Officer who is seized of the matter against the raided person reaches such satisfaction that any undisclosed income belongs to such other person over whom he has no jurisdiction, then, in that event, he has to transmit the material to the Assessing Officer having jurisdiction over such other person and in such cases the Assessing Officer who has jurisdiction will proceed against such other person by issuing the requisite notice contemplated by sec. 158BC of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under section 158BC in relation to the person not searched, whenever search has been conducted under section 132 or the documents have been requisitioned under section 132A, the Assessing Officer of the searched person needs to record his satisfaction that undisclosed income belongs to the person, other than the person with respect to whom search was carried out under Section 132 of the Act. He is also required to hand over the books of account or other documents or assets seized, to the Assessing Officer having jurisdiction over such person and thereafter, the Assessing Officer who has the jurisdiction would proceed under Section 158BC against such person who has not been searched. 12. In the instant case, as could be noted from the record, search had been carried out in case of Jayraj Group. On examination of the files produced before us by the learned counsel Shri Parikh, it can be seen that the satisfaction recorded by the Assessing Officer is in the case of this very assessee. On pertinently questioned about the satisfaction of the Assessing Officer in case of the searched person (i.e. Jayraj Group), Revenue is unable to point out any such satisfaction of Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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