TMI Blog2011 (4) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and orders must fail. In the result, only on this ground we are inclined to dismiss the appeals. - MR. AKIL KURESHI AND MS SONIA GOKANI, JJ FOR THE PETITIONER : MR MR BHATT, SR. ADV. WITH MRS MAUNA M BHATT FOR THE RESPONDENT : MR SN SOPARKAR, WITH MRS SWATI SOPARKAR, MR MONAAL DAVAWALA Ms.BHOOMI THAKORE ORDER (Per : HONOURABLE MR.JUSTICE AKIL KURESHI) Revenue is in appeal against the judgment of the Tribunal dated 16.1.09 raising following questions for our consideration: A. Whether on the facts and in the circumstances of the case the Tribunal is justified in law in holding that the assessment cannot be framed u/s.153C of the I.T.Act, 1961 and in turn canceling the assessment framed u/s.153C of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaken in the premises of Lalit K. Patel and Kantibhai Patel. Certain documents were found during the search operations. Such documents allegedly reflect accounts and estimations of proposed land and building and miscellaneous work done for the respondent assessee. The Assessing Officer, therefore, invoked the provisions of section 153C of the Act and proceeded to assess/reassessee the income of the assessee on the basis of the powers under section 153C. Before the Assessing Officer and further appeals, the assessee had taken the following contentions in its defence. 1) That the papers found during search operations of said Shri Lalit Patel and Kanti K. Patel do not belong to the assessee and therefore, the Assessing Officer could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case would be governed by the provisions contained in subsection (1) of section 153C of the Act. The Assessing Officer was, thus, justified in assessing the income of the assessee under such provisions. Counsel drew our attention to a decision of the Delhi High Court in the case of S.R.Baltiboi Co. v. Department of Income Tax, (2009) 315 ITR 137 (Delhi) wherein the Bench referring to the words other person employed in section 158BD observed that the same must only be construed as referring to the other person having dealings or transactions with the party who is being searched or whose material is being seized. Otherwise, the provisions may well be seen as violative of the fundamental rights enshrined in articles 14 and 19 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer shall proceed against each such other person and issue such other person notice and asses or reassess income of such other person in accordance with the provisions of section 153A: Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to subsection (1) of section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing officer having jurisdiction over such other person. Central issue in the present case is, can it be stated that any documents seized or requestioned during search operations belonged to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment in case of the person where a search is initiated under section 132 or books of account, other documents or assets are requisitioned under section 132A after the 31st day of May, 2003. Section 153B lays down the time limit for completion of assessment under section 153A. Section 153C which is similarly worded to section 158 BD of the Act, provides that where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in Section 153A he shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt columns against the name of the petitioner along with other members, however, it is nobody s case that the said documents belong to the petitioner. It is not even the case of Revenue that the said three documents are in the handwriting of the petitioner. In the circumstances, when the condition precedent for issuance of notice is not fulfilled any action taken under section 153C of the Act stands vitiated. We find that in the present case, very similar situation has arisen. The document on the basis of which the Assessing Officer initiated proceedings under section 153C of the Act was admittedly not written by the assessee. It, of course, had certain references to the estimations and expenditure, etc. of the properties belonging to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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