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TMI Blog2012 (6) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer Mangalore on the 25.01.2009 with various details and documents. Petitioner submits that thereupon, he made enquiries and came to know that on 17.03.2009, a search was conductcd by the IT Department in the premises of Mohtisham Group, Mangalore and that the enquiiy for which he was summoned, was with regard to his income, assets and investments. Accordingly, during March. 2009, petitioner appeared before the Asstt. Director of Income Tax, Mangalore and his statement was recorded. 4. It is his case that subsequently, on 9.11.2010, he received a phone message from the office of die respondent requiring his appearance as his assessments for the years commencing from 2003-2004 were being taken up and that on enquiry, he was informed that this was being done based on recovery of certain documents in the search mentioned above. According to him, thereupon he requested the respondent to give him details of the proceedings and documents that were seized during the search, on the basis of which, die assessments were proposed to be taken up and that the respondent did not furnish any of those details or documents. It is stated that while so, Ext. P10 letter dated 25.11.2010 was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is stated that while awaiting to get the documents, pursuant to a telephone message from the office of the respondent, he met the respondent on 7.06.2011, when he was served Exts. P11 to P17 assessment orders issued under section 144 r/w section 153C and 153A of tire Act for the years 2003-2004 to 2009-2010. It is in these circumstances, this writ petition has been filed seeking to quash Ext. P15 assessment order for the year 2007-2008 and the prayer in the other writ petitions is to quash the assessment orders for the remaining years. 7. On behalf of the respondent, a statement and an additional statement have been filed by the standing counsel, clarifying that since the facts in relation to each of the assessment years are similar, the statement is filed with reference to the assessment year 2003-2004. According to the respondent, during the course of a search conducted on 17.03.2009 at the premises of M/s Mohtisham Group, Mangalore certain documents relating to the assessee were seized, which revealed that he had purchased a flat at Mangalore. Subsequently, on the basis of information received from the Deputy commissioner of income tax, Mangalore, proceedings under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pear on 14.12.2010, which also was acknowledged by his representative on 10.12.2010 as per Ext. R(G). It is stated that finally the petitioner appeared before the respondent on 18.12.2010 but did not furnish any details and that at his request, though time was granted till 22.12.2010, the petitioner neither responded nor filed the returns or furnished the details. 11. It is stated that in the aforesaid circumstances, the assessments for the years 2003-2004 to 2009-2010 were completed under section 144 of the Act, with the prior approval of the Joint. Commissioner of Income Tax, Calicut, vide his order dated 29.12.2010. According to the respondent, the assessment orders were despatched to the petitioner by speed post on 30.12.2010 but were returned unserved and that therefore these orders were served on him on 7.01.2011 through process server. 12. On the filing of the statement on behalf of the respondent, the petitioner filed an additional affidavit dated 4.02.2011, contradicting the averment in para 6 of the statement that copies of ITS Data were already served on him and asserting that no such data was ever given to him. Petitioner has also filed a reply-affidavit dated 4.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2009-2010 was also made under section 153A r/w section 153C of the Act, which is patently illegal. 14. In view of the aforesaid contentions raised, an additional statement dated 14.03.2011 has been filed on behalf of the respondent. Insofar as the validity of the assessment for the year 2009-2010 is concerned, In the additional statement it has been stated thus : "2. In para No. 3 of the reply-affidavit the petitioner is trying to establish that the assessment made for assessment year 2009-2010 is illegal since the assessment should have been made only from asst. yr. 2003-04 to assessment. year. 2008-2009 i.e. for six assessment years only and not for assessment year. 2009-2010. This argument is wrong for the following reasons : (a) As per the provisions of the Act the assessment in such cases shall be made for six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made. The relevant search in this case was conducted in the financial year 2008-09 which is relevant to the asst. yr. 2009-10. Hence, the six assessment years will be 2003-04, 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice on Sri Nithin Raj is concerned, the respondent has stated thus : "It is clearly admitted in the writ petition itself that pursuant to Ext. P10 notice, the petitioner deputed an employee to appear before the assessing officer. Accordingly, the employee of the petitioner appeared before the assessing officer on 1.12.2010 and requested for time. The employee appeared before the assessing officer is none other than Sri Nithin Raj who signed in the order sheet also. Thereafter, on 24.12.2010 the petitioner appeared before the assessing officer along with this person and had discussed the case. The petitioner had himself signed tire order sheet wherein he had undertaken to file various details. A copy of tire order sheet is produced herewith and marked as Ext. R(H). Thereafter he was not to be seen. He did not file the details which he had undertaken to file and, consequently, the assessments had to be completed ex parte." 18. Insofar as the petitioner's complaint that copy of Ext. R(H), order sheet was not given to him, is concerned, in para 14 of the additional statement, it is stated that: "the petitioner never made a request to give him copies of the order sheet." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . R(C) notice issued under section 142(1) of the Act is concerned, the service of this notice was acknowledged by tire petitioner's wife as per Ext. R(D). They relied on section 282(b) of the Act r/w Order V, r. 15 of the CPC. 23. Having considered the rival submissions, I am of tire view that there is considerable force in the contention of the Revenue. Although it is true that tire respondent did not produce any document to substantiate that Sri Nithin Raj is a duly Authorised Representative of the petitioner as provided in section 288 of tire Act, still it is a fact that in Ext. R(E) letter dated 9.11.2010 issued by tire petitioner, tire genuineness of which is undisputed, while requesting to make available a copy of the satisfaction note recorded by the assessing officer at Mangalore, tire petitioner made reference to Ext. R(A) notice dated 16.03.2010. This letter reads thus : "From Dr. K.M. Mehaboob, 'Baywatch', West Hill, Calicut. To The Asstt. CIT, Circlc-2(1), Calicut. Dear Sir, Sub : Income-tax asst. yrs. 2003-04 to 2008-09'Notice under section 153A(l)(a) r/w section 153C of the IT Act'Regarding. Ref: Your notice No. ADTPM0486E, dated 16.03.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here again petitioner contended that this was served on Sri Nithin Raj who acknowledged the same as per Ext. R(G). According to the petitioner, Sri Nithin Raj being xrot an authorised agent, summons was also not legally served. As far as this aspect is concerned, in the reply- affidavit dated 4.02.2011, in para 8, the petitioner has stated thus : "Adverting to para 7, pursuant to summons issued to me on 8.12.2010 for appearance, I did appear on the 18.12.2010 as per the extended date given to me by the assessing authority. Hence the allegation of non-appearance is not correct." These averments contained in the reply-affidavit show that the petitioner is admitting service of the summons on him and also that in pursuance to the summons, he appeared before the respondents on 18.12.2010. Section 292BB of the Act providing deemed validity of service of notice in certain circumstances assumes importance in this context and this section reads as under : "292BB. Notice deemed to be valid in certain circumstances'Where an assessee has appeared in any proceeding or co-operated in airy inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licut". Therefore, the fact that in some of the documents, petitioner's address has been shown differently will not invalidate the documents that were served in the residential address, which was mentioned by the petitioner himself in Ext. R(E) and his sworn statement. 28. It was contended by the counsel for the petitioner that both under section 153C and section 158BD of the Act, the assessing officer is required to record his satisfaction before initiating proceeding against "any other person". It was contended that in this case, such satisfaction was not recorded and that in spite of Ext. R(E) request, copy of the satisfaction recorded was not furnished. As already seen the proceedings against the petitioner commenced following the search and seizure in the premises of Mohitsham, Mangalore, which was conducted as per section 132 of the Act. In such a case, section 158BD provides that 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the petitioner was that he is entitled to a copy of the satisfaction recorded. Further, it is the specific case of the respondent that they have received the satisfaction recorded by the assessing officer at Mangalore and they have also stated their reason for not giving copy to the petitioner. In such circumstances, in the absence of anything to hold that satisfaction was not recorded by tire assessing officer at Mangalore, the judgment of the apex Court relied on by the petitioner, will not be of any assistance to him in the facts of tire case. Thus, I do not find any substance in tire case of tire petitioner that tire proceedings were initiated against him without the assessing officer at Mangalore recording his satisfaction in terms of section 153C and 158BD of the Act. 31. Counsel for the petitioner then contended that the assessment under section 144 of tire Act was completed in violation of tire principles of natural justice, and without affording tire petitioner an opportunity in terms of section 144(1) of the Act. Section 144 of tire Act provides for best judgment assessment. Section 144(1) provides that the assessing officer, after taking into account all releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the case of the respondent and it is unnecessary to deal with that aspect any further. Answering this complaint, in para 5 of the additional statement dated 14.03.2011 filed on behalf of the respondent, it is stated thus : "The petitioner has not made any such request. He had, however, made a request for a copy of the satisfaction note recorded by the AO assessing the Mohtisham Group by his letter dated 9.11.2010 sent from 'Bay Watch', West Hill, Calicut which address now he claims to be not known to him." In the light of these facts it has to be held that the petitioner has miserably failed to prove that any documents were sought for by him or that on account of refusal to furnish the same, any prejudice was caused to him to sustain a plea of violation of the principles of natural justice. 35. As far as the complaint that adequate opportunity was not given is concerned, from the facts pleaded by both sides, it appears that Exts. R(A) and R(C) notices were served on the petitioner on 24.03. 2010 and 7.09.2010 respectively. It is also seen that it was only following the service of Ext. P10 notice. Sri Nithin Raj appeared before the respondent on 1.12.2010 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the 1st day of June, 2001, the provisions of this clause shall have effect as if for the words, 'six assessment years', the words, 'ten assessment years' had been substituted;" 38. A perusal of this section shows that apart from the six assessment years preceding the previous year In which the search under section 132 was conducted, block period also includes, the period upto the date of the commencement of such search in the previous year in which the search was conducted. In this case, since proceedings for assessment were initiated following a search under section 132, the special procedure as provided in Chapter XTV-B has to be followed. In such a case, the assessment to be completed has to be for the block period as defined in section 158B(a) and the block period includes the period upto the date of commencement of search, in addition to the six assessment years preceding the previous year in which the search was conducted. Insofar as this case is concerned, apart from contending that the assessment under section 144 is beyond the six years, petitioner does not have a case that the assessment for 2009-2010 has been completed violating section 158B(a) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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