TMI Blog2015 (4) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... e of only survey under section 133A and search has been clearly deleted. There is no dispute on this fact, as the same is borne out by document. If it is a case of survey under section 133A of the Act, as is evident from the document, the block assessment, invoking the provisions of sections 158BC does not arise, as there is no search in terms of section 132 of the Act - Decided in favour of assessee - T. C. A. No. 2202 of 2006 - - - Dated:- 29-4-2015 - R. Sudhakar And K. B. K. Vasuki, JJ. For the Petitioner : Dr. Anitha Sumanth For the Respondent : T. R. Senthil Kumar JUDGMENT R. Sudhakar, J. 1. Aggrieved by the order of the Tribunal in allowing the appeal filed by the Revenue, the appellant/assessee is before this court by filing the present appeal. This court, vide order dated August 29, 2006, while admitting the appeal, framed the following substantial questions of law for consideration : 1. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the plea regarding jurisdiction is bereft of cogency ? 2. Whether on the facts and in the circumstances of the case the Tribunal ought not to have hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,30,834 in so far as this appellant is concerned. Many of the dealers, who suffered similar orders, filed appeals to the Tribunal, which came to be disposed of by a common order dated April 12, 1999. 3. In para.2 of the said order of the Tribunal dated April 12, 1999, the objection of all the assessees that the Assessing Officer had no jurisdiction to issue the notice under section 158BC as there was no search or requisition made by the Income-tax Department have been recorded by the Tribunal. The said objections of the assessees is recorded based on an affidavit filed before the Tribunal that there was no search or requisition made by the Income-tax Department. The further stand of the assessees that on an earlier occasion, vide order dated October 8, 1997 (I. T. A. No. 1925 and 1926 of 1996, etc.), the Tribunal cancelled the assessment on a similar plea has also been recorded by the Tribunal. Taking note of the assessees stand that there was no search or requisition and also taking note of the earlier order of the Tribunal, the Tribunal, vide its order dated April 12, 1999, gave a finding that there was no search or requisition issued and that in the case of this assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt again reiterated the same principle in the case of Mariam Aysha v. Commr. of Agrl. I.T. [1976] 104 ITR 381 (Mad) at page 384 that consent cannot give jurisdiction is an essential principle of law and the taxing authority can act only if there is a power under the statute to do so. Their lordships of the Gujarat High Court in the well reasoned and elaborate judgment ren dered in the case of P. V. Doshi v. CIT [1978] 113 ITR 22 (Guj) have laid down after discussing the ratio and principle enunciated by the hon'ble Supreme Court in several cases that jurisdiction can neither be waived nor conferred by consent or acquiescence. From these authorities, we have no hesitation or doubt in out mind to hold that the Assessing Officer did not possess valid jurisdiction to issue notices to various appellant assessees herein in terms of section 158BC of the Act nor he had any power, authority or jurisdiction to make or pass any orders of assessment in respect of the block period as are ques tioned by the appellants in these appeals. The impugned assessment orders of the block period made on August 29, 1996 are, therefore, clearly without jurisdiction and are liable to be quashed and we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the contentions of the parties open. 5. On remand, the Tribunal passed a fresh order on February 28, 2006. The objection raised by the present appellant, before the Tribunal on remand, for better clarity and appreciation of the case, is extracted hereinbelow : 6. At the threshold, the assessee has taken amiss to the jurisdictional aspect of the impugned block assessment order. Following has been urged : 'The learned Assessing Officer erred in law in assuming jurisdiction under section 158BC of the Income-tax Act, 1961 inasmuch as no authorisation under section 132 of the Income-tax Act, 1961, was issued in the name of the assessee. The assessment framed consequent to the issue of the said notice is contrary to law and is, therefore, unsustainable.' 6. On the question of jurisdiction raised by the assessee, the Tribunal placed reliance on the decision in CIT v. Indore Constructions P. Ltd. [2005] 279 ITR 545 (MP), wherein the Madhya Pradesh High Court held as under (headnote) : Where a search warrant is issued in the name of the director and undisclosed income of the company is discovered, the Assessing Officer has jurisdiction to proceed under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under sec tion 158BC against such other person and the provisions of this Chapter shall apply accordingly. 13. However, it is brought to the notice of this court by the learned counsel for the appellant/assessee that the above decision of the Madhya Pradesh High Court has been reversed by the Supreme Court in Indore Construction P. Ltd. v. CIT [2007] 289 ITR 341 (SC), wherein the Supreme Court has held that the condition precedent for invoking the provisions of section 158BD are to be satisfied before the provisions of the Chapter are followed. The relevant portion of the order of the Supreme Court is extracted hereunder (page 348) : The condition precedent for invoking a block assessment is that a search has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the said documents, the objection raised by the learned counsel for the appellant that there was no search conducted by the respondent in the premises of the assessee, be it business premises or residence premises, is found to be justified from a reading of the record of proceedings dated August 31, 1995 in relation to Nav Bharat Corporation at No. 28, Godown Street. It was a case of survey under section 133A of the Act and on that basis alone the entire proceedings has happened. For better clarity, the relevant portion of the proceedings, which shows that only survey was conducted in the premises of Nav Bharat Corporation, is extracted hereinbelow : Inventory of stocks taken at the business premises of M/s. Nav Bharat Corporation, 28, Godown St., Madras 1, during the course of survey under section 133A on August 31, 1995. 17. The above document, which is undisputed and forms part of the court records, makes it clear that the confusion has apparently happened because search under section 132 of the Act commenced in the case of other assessees as well and, therefore, all similarly placed persons were clubbed together and assessment orders were passed. However, neither ..... X X X X Extracts X X X X X X X X Extracts X X X X
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