TMI Blog2018 (2) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, while relegating the assessee to avail the appellate remedy before the ITAT, this Court is inclined to direct that the impugned assessment proceedings shall continue to remain stayed till the disposal of the appeal by the Tribunal. Writ petition is held to be not maintainable and accordingly dismissed and the petitioner is granted liberty to file an appeal before the ITAT as against the impugned assessment order. - W. P. No. 41295 of 2002 - - - Dated:- 5-2-2018 - T. S. Sivagnanam, J. For the Petitioner : Mr.M.S.Senthil Kumar For the Respondents : Mr.A.P.Srinivas and Mr.A.N.R.Jayaprathap ORDER Heard Mr.M.S.Senthil Kumar, learned counsel for the petitioner and Mr.A.P.Srinivas, learned standing counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een issued under Section 158 BD, the respondents would not be entitled to amend the notice or cure the defect, in the light of the language employed in Section 292(B) of the Act in support of such contention, the learned counsel played reliance on the decision in the case of V.Ramaiah Vs.Commissioner of Income Tax reported in (2013) 85 CCH 0155 ChenHC (3) As the notice dated 11.10.2000 mentioned Section 158BC, the petitioner had absolutely no knowledge that the assessment order is under Section158BD and came to know of it only when the impugned assessment order was passed and therefore, the petitioner is entitled to canvass the question of limitation for passing the impugned assessment order. (4) It is submitted that the Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or along with the initiation of proceedings against the searched person under Section 158 BC of the Act or (b) in the course of the assessment proceedings under Section 158BC of the Act; or (c) immediately after the assessment proceedings are completed under Section 158BC of the Act of the searched person. 7. It is submitted that in the instant case, no satisfaction note was prepared and it has been seriously disputed by the petitioner. 8. The Revenue, on the other hand has raised the following contentions: 8.1) The legal issue involved in this writ petition is squarely covered by the decision of the Division Bench in the case of Kailash Sarda V. CIT reported in [2014] 363 ITR 36 (Madras). (8.2) The learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peculiar facts and circumstances of the case. As mentioned above, two of the main contentions raised by the petitioner prima facie appear to be contrary to each other. In my view, only if the petitioner accepts that a proper warrant of search was issued in its name and thereafter, search was conducted, it is doubtful whether the question of limitation could be canvassed. If the petitioner's case is that no authorization was given and no valid search was conducted, this would go contrary to the other submissions. However, I do not wish to express any opinion on this as the Court is convinced that the assessee should be relegated to avail the appeal remedy before ITAT. 10. The issue pertaining to whether the satisfaction note was draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, I hold that the writ petition is not maintainable and the factual and disputed question of fact have to be analysed and thrashed out before the ITAT. 12. Record of proceedings shows that there has been an order of interim stay granted by this Court in this writ petition, when the writ petition was entertained on 26.11.2002 and till date, interim order is in force and infact, it has been made absolute on 31.12.2002, much prior to the filing of the counter affidavit by the 1st respondent, dated 22.08.2003. Therefore, while relegating the assessee to avail the appellate remedy before the ITAT, this Court is inclined to direct that the impugned assessment proceedings shall continue to remain stayed till the disposal of the appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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