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2016 (10) TMI 105 - BOMBAY HIGH COURT

2016 (10) TMI 105 - BOMBAY HIGH COURT - TMI - Justification to issue the impugned notice under Section 158BC - undisclosed income - Held that:- As no incriminating documents were found during the course of search nor was it found that he was in any manner involved in the bank account with his name in the said Bank. Thus it appears that the Respondentsrevenue took search and seizure proceedings in respect of the Petitioner on account of mistaken identity. In any case the appraisal report would in .....

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umar, learned Counsel for the Respondents-revenue informed us that the Respondents-revenue seeks to press the impugned notice and seek dismissal of the present Petition. In the above view, this is the fit case where costs should be awarded to the Petitioner. The Respondents-revenue i.e the jurisdictional Chief Commissioner of Income Tax (Respondent No.1) is directed to pay the costs of ₹ 20,000/to the Petitioner within four weeks from today. - Writ Petition No. 1344 of 2000 - Dated:- 14-9- .....

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otice. This was consequent to search and seizure proceedings under Section 132 of the Act on the Petitioner. This search operation has also been challenged by the Petitioner seeking an apology from the Respondents Revenue. 2 On 10 October 2000, this Petition was admitted only with regard initiation of proceedings under Chapter XIVB of the Act i.e. issue of the impugned notice while staying it. In view of the above, the challenge to search and seizure proceedings by the Petitioner and consequent .....

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However a telephone diary of Mr. Nirmal Suchanti (Concept Group) had the name of the Petitioner with his telephone numbers mentioned therein alongwith the name of M/s Devaki Hospital in brackets. 4 On the aforesaid basis the Respondent-Revenue carried out the search on 16th January, 1999 under Section 132 of the Act on the Petitioner and his premises. During the course of the search, an amount of ₹ 20,000/in cash was found in his house which was explained to the satisfaction of the Revenu .....

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an affidavit dated 2 February 1999 duly notorised pointing out that Dr. Sen (Petitioner herein) is not concerned in any manner with the account found with the said Bank nor has the Concept Group of Companies had any business dealing with him. The affidavit put on record the apology of Mr. Nirmal Suchanti to the Petitioner. A copy of the above affidavit of Mr. Nirmal Suchanti was also submitted by the Petitioner to the Income Tax Department. 5 Despite the above, the impugned notice dated 16 May 2 .....

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e Assessing Officer would not have any justification to issue the impugned notice under Section 158BC of the Act. 6 We find that the Respondents-revenue have field an affidavit-in-reply of one Shri Dinesh Singh, Deputy Director of Income Tax dated 29 August 2000. However, in the affidavit-in-reply there is no averment made with regard to any incriminating material found during the course of search linking the Petitioner to any undisclosed income. In fact, the averment of the Petitioner that noth .....

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reasonable belief for carrying out the search operation (See Director General of Income Tax (Investigation) & Ors. Vs. Speacewood Furnishes (P) Ltd. 374 ITR 595). We specifically asked the Respondentsrevenue to produce the record maintained by it including the appraisal report, consequent to search, before taking a decision to issue the impugned show cause notice. At this stage, Mr. Suresh Kumar, learned Counsel for the Respondents revenue has produced an appraisal report dated 16 April 2000 .....

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name of TOI Outdoor owned by socalled 'Sudhir Jain'. Dr. Gautam Sen vehemently denied having any such bank account and also denied having introduced TOI Outdoor to the bank. He, however, claimed to know Shri Nirmal Suchanti as a family friend for the last 20 years. Dr. Gautam Sen is an eminent consulting surgeon and a professor in Grant Medical College and a Head of Department of Surgery at GT Hospital. On a careful examination of his antecedents and the related records, it is concluded .....

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course of search nor was it found that he was in any manner involved in the bank account with his name in the said Bank. Thus it appears that the Respondentsrevenue took search and seizure proceedings in respect of the Petitioner on account of mistaken identity. In any case the appraisal report would indicate that no notice under Section 158BC of the Act could be issued to the Petitioner as the condition precedent to issue notice under Section 158BC of the Act, viz. undisclosed income found duri .....

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