TMI Blog2014 (4) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... (11) TMI 27 - DELHI High Court] - The findings of the lower authorities are based on a proper appreciation of the facts - The documents, in the form of the (unsigned) agreement to sell do disclose that the real and undisclosed consideration for sale of the property was far in excess of what was in fact reported in the assessment - the CIT (A) and Tribunal was of the opinion that since only a portion of the property had been gifted by the assessee’s husband to her, the entire addition could not be made in her hands – this was purely a question of fact, the Court cannot interfere in it – Decided against Assessee. - ITA 483/2012, C.M. No. 14602/2012 (for exemption) & 20240/2013 (for amendment of appeal), ITA 251/2013 - - - Dated:- 31-3-2014 - S. Ravindra Bhat And R. V. Easwar,JJ. For the Petitioner : Ms. Prem Lata Bansal, Sr. Advocate with Mr. Ram Avtar Bansal and Mr. Naman Nayar, Advocates, for Ms. Niti Wadhawan For the Respondent : Mr. Sanjeev Sabharwal, Sr. Standing Counsel with Mr. Ruchir Bhatia, Jr. Standing Counsel, for Revenue. ORDER Mr. Justice S. Ravindra Bhat 1. The following questions of law arise in the present cross appeals by the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the appellant/asseseee argued that the search and assessment were without jurisdiction and the AO s order had to be set aside. It was argued that the warrant and panchnama were not issued in her name and consequently the entire assessment was without jurisdiction. The CIT (Appeals) was of the opinion that since the assessee had not urged the question of lack of jurisdiction on account of want of notice before the AO, that issue could not be raised in appeal. He was also of the opinion that the material, used by the AO to saddle the appellant with a tax demand, was obtained on the basis of a search of her husband. Since the material in the form of documents was also backed by her statements, the assessment of income in her hands was legal and valid. 4. The assessee appealed to the ITAT, contending that the order under Section 158BC together with Section 144 was unsustainable and a nullity in the absence of neither a search warrant nor a panchnama ever having been drawn in her name. Given that these prerequisites for a valid assessment under Section 158BC had not been met, the proceedings were sought to be quashed. It was contended that the findings of the lower authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that if the Revenue sought to utilize the materials seized in the course of search of Sh. Y.C. Wadhawan, it was incumbent upon the AO to issue separate notice after recording due satisfaction. Learned counsel again highlighted that no notice under Section 158BD was issued by the AO of Sh. Y.C. Wadhawan nor was any satisfaction recorded in that regard. In these circumstances, argued learned counsel, the entire assessments were vitiated. Learned counsel for the assessee also relied upon the judgments reported as Commissioner of Income Tax. v. Ms. Pushpa Rani, 289 ITR 328 and V. Ramaiah v. CIT, 356 ITR 646. 7. Learned counsel for the Revenue, Sh. Sanjeev Sabharwal, resisted the appellant s arguments and urged that the submission with respect to lack of jurisdiction was never urged during the assessment proceedings. It was argued that in the present case not only did the assessee sign on the warrants, but she even made admissions in the course of statements recorded during the search of her husband s residence, pointedly with reference to the documents seized at that stage which were ultimately used to assess her. Learned counsel submitted that having regard to the presumptive nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 132 or requisitioned under section 132A shall be retained to the extent necessary and the provisions of section 132B shall apply subject to such modifications as may be necessary and the references to 'regular assessment' or reassessment' in section 132B shall be construed as references to 'block assessment'. 158BD. Undisclosed income of any other person. Where the assessing officer is satisfied that any undisclosed income belongs to any person, other than the person with respect to whom search was made under section 132 or whose books of account or other documents or any assets were requisitioned under section 132A, then, the books of account, other documents or assets seized or requisitioned shall be handed over to the assessing officer having jurisdiction over such other person and that assessing officer shall proceed against such other person and the provisions of this Chapter shall apply accordingly. 9. The main thrust of the argument advanced by the assessee has been that in the absence of an independent satisfaction note in respect of her case, and notice separately, after the search under Section 158BD, the AO could not have validly proceeded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Block Period and undisclosed income ; section 158BA makes a provision with regard to assessment of undisclosed income as a result of search initiated or requisition made after 30-6-1995; section 158BB relates to computation of undisclosed income of the block period and section 158BC lays down the procedure for block assessment and section 158BD provides for assessment of undisclosed income of any other person. In the present case, we are not concerned with the other provisions contained in the chapter. 10. Section 158BA opens with a non obstante clause and, therefore, enacts a provision of overriding nature so as to prevail over any other provisions of the Act. It provides that where after 30-6-1995, a search is initiated under section 132 or books of account, other documents or any asset etc., are requisitioned under section 132A of the Act in the case of any person, the assessing officer shall proceed to assess the undisclosed income in accordance with the provisions of Chapter XIV-B. Section 158BC, with which we are concerned in the instant case, lays down the procedure, which the assessing officer is required to follow, where any search has been conducted under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue is capable of an alternative view. As noted supra, the view of the Tribunal is based on clear provisions of law, causing no ambiguity. Thus, no substantial question of law, which is the sine qua non for the exercise of power under section 260A of the Act arises from the impugned order. 12. In the present case, the panchnama drawn pursuant to the warrant issued in respect of Shri. Y. C. Wadhawan on 27.05.2003 concededly contains the signature of the present appellant, his wife. The warrant in respect of her locker was issued subsequently. She was informed of the search and signed the panchnama on 29.05.2003. Therefore, she did not conform to the description of one other than the person with respect to whom search was made under section 132 , for which a separate notice is required to be served, as is urged by her. Rather, the Court notes that a search was conducted in respect of her as well. The search conducted previously in respect of her husband no doubt formed the material which ultimately resulted in the addition and the impugned assessment. Such addition, however, cannot be considered unauthorized for not fulfilling the conditions prescribed under Section 158BD. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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