TMI Blog2015 (2) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... 58BC which is not applicable in the instant case, since the assessee was neither searched nor assets were requisitioned from him under Section 132A of the Act. Further, there were no warrant of authorization in the name of the assessee. No reason to interfere with the impugned order passed by the Tribunal - Petitioner's application for refund directed to be decided within a period of four months from today . - Decided against revenue. - INCOME TAX APPEAL No. - 86 of 2011 - - - Dated:- 18-2-2015 - Hon'ble Tarun Agarwala And Hon'ble Dr. Satish Chandra JJ. For the Appellant : A.N.Mahajan Ssc,D. Awasthi For the Respondent :- Krishna Agrawal And Bharat Ji Agrawal,D. Awasthi ORDER Per Hon'ble Dr. Satish Chand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 158BC of the Act. Being aggrieved, the Department has filed the present appeal. With this background Shri Bharat Ji Agrawal, learned Senior Counsel for the Department submits that all the three persons were carrying the cash, specifically told that the money belongs to the assessee. The Tribunal has wrongly held that if the undisclosed income was to be assessed in the hands of the assessee, it could have been done under Section 158BD and not under Section 158BC before framing the assessment. It is mandatory to issue the notice under Section 158BD and also to record a satisfaction by the Assessing Officer having jurisdiction over the persons search and nothing has been brought on record that any notice under Section 158BD was issued t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning that Section 132A falling under Chapter XIII of the Income Tax Act which enunciates the powers of the Income Tax Authorities, nowhere provides that the search or requisition be done by a particular officer who has jurisdiction over a particular person. On a conjoint reading of Section 132A, Section 158BC and Section 158BD, the only condition precedent, for the Assessing Officer to initiate proceeding of assessment of the undisclosed income of any person, is that a proper search or requisition must have been done as per Chapter XIII and a satisfaction must have been recorded by the Assessing Officer based on such search or requisitioned documents, assets etc. irrespective of the person against whom the search was conducted or documents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1) of Section 142, setting forth his total income including the undisclosed income for the block period. He further submits that as per section 132A(1)(c) and Section 132A(3) of the Income Tax Act, the assets which are requisitioned by authorised officer of Income Tax Department, such assets will be treated as assets seized under Section 132(1) or the Income Tax Act, by the requisitioning officer from the custody of the person referred to in Clauses (a), (b) or (c) of sub Section (1) of Section 132A of the Act. Hence, for initiation or proceeding under Section 158BC of the Income Tax Act, the seizure or survey or requisition must be in the name of the assessee, against whom proceeding has been initiated. The submission of the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08] 219 CTR (Guj.) 26; (c) Raghu Raj Pratap Singh others vs. Asst. Commissioner of Income Tax [2008] 307 ITR 450 (Alld.); and (d) New Delhi Autho Finance P. Ltd. vs. Joint Commissioner of Income Tax [2008] 300 ITR 83 (Delhi) We heard both the parties at length and gone through the materials available on record. From the record, it appears that the police recovered a sum of ₹ 17,00,000/- from the possession of three persons namely :- Shri Mahesh Kumar Khandelwal ₹ 5,45,000/-; Shri Vijay Kumar Soni ₹ 6,00,000; Shri Phool Raj Singh ₹ 5,55,000/- Total ₹ 17,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere requisitioned from the S.H.O. Kotwali, Allahabad under Section 132A of the Act, which was seized from three persons. Therefore, the provision of Section 158BD is applicable in the instant case, but the same was not applied by the Department. The assessment was framed after issuing notice under Section 158BC which is not applicable in the instant case, since the assessee was neither searched nor assets were requisitioned from him under Section 132A of the Act. Further, there were no warrant of authorization in the name of the assessee. In view of the above discussion and by considering the totality of the facts and circumstances of the case, it appears that no substantial question of law is emerging from the impugned order. When it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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