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TMI Blog2007 (2) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... and assets found and seized by the Lokayukt authorities were requisitioned by the Commissioner of Income-tax, Jabalpur, as per the authorisation issued by him under section 132A of the Act. In pursuance of the aforesaid seizure a notice under section 158BC of the Act was issued to the assessee on March 18, 1996. In response to the notice under section 158BC return was filed on September 21, 1996. The assessment was completed by the Assistant Commissioner of Income-tax CIR-I(1), Jabalpur (for short " the Assessing Officer" ), under section 143(3)/158BC on November 29, 1996, and the undisclosed income was computed at Rs. 82,83,854. 3. Being aggrieved by the aforesaid order of assessment an appeal was preferred before the Tribunal by the assessee. Before the Tribunal it was contended by the assessee that the notice under section 158BC was invalid as the status of the assessee was not mentioned in the notice and consequently the authorisation issued by the Commissioner under section 132A was invalid which vitiates the entire assessment under section 158BC making it void ab initio. There was a difference of opinion between the two members of the Tribunal. The learned Judicial Member a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be assailed in the course of assessment inasmuch as the Assessing Officer and thereafter the appellate authority under the statute have no jurisdiction to dwell upon and delve into the same. It is urged by Mr. Arya that what cannot be the subject-matter of assessment cannot be scrutinised in an appeal as that would destroy the fabric and concept of jurisdictional facet. To buttress the aforesaid submissions he has placed reliance on the decisions rendered in the cases of CIT v. Garware Nylons Limited [1995] 212 ITR 242 (Bom) and Princess Usha Trust v. CIT [1989] 176 ITR 227 (MP). 7. To appreciate the rival submissions raised at the Bar it is apposite to refer to section 132A of the Act. It reads as under : "132A. Power to requisition books of account, etc.-(1) Where the Director General or Director or the Chief Commissioner or Commissioner, in consequence of information in his possession, has reason to believe that- (a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922 (11 of 1922), or under sub- section (1) of section 131 of this Act, or a notice under sub-section (4) of section 22 of the Indian Income-tax Act, 1922, or unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been delivered to the requisitioning officer, the provisions of sub-sections (4A) to (14) (both inclusive) of section 132 and section 132B shall, so far as may be, apply as if such books of account, other documents or assets had been seized under sub-section (1) of section 132 by the requisitioning officer from the custody of the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of sub-sec tion (1) of this section and as if for the words ' the authorised officer' occurring in any of the aforesaid sub-sections (4A) to (14), the words ' the requisitioning officer' were substituted." 8. Section 158BC of the Act which deals with procedure for block assessment is as follows : "158BC. Procedure for block assessment.-Where any search has been conducted under section 132 or books of account, other documents or assets are requisitioned under section 132A, in the case of any person, then,- (a) the Assessing Officer shall- (i) in respect of search initiated or books of account or other documents or any assets requisitioned after the 30th day of June, 1995, but before the 1st day of January, 1997, serve a notice to such person requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss computed, or to the status under which he is assessed . . . . (ab) an order of assessment or reassessment under section 115WG." 10. The submission of Mr. Nema is that when the Tribunal is established under the Act by virtue of the provisions contained under article 323 of the Constitution of India and it has the power to scrutinise whether the requisite conditions precedent provided under section 132A have been followed or not would come within the concept of material incidental as referred to as engrafted under sub-clause (i) of clause (2) of article 323 of the Constitution. In essence, the stand of Mr. Nema is that the Tribunal cannot be regarded to be bereft of jurisdiction to verify the existence of the fact situation with regard to search having taken place in accordance with law specified under clause (a) or (b) or (c) of sub-section (1) of section 132A of the Act which is a pre-requisite condition for authorising search in accordance with law. In this context, we think it appropriate to reproduce the view expressed by the Third Member of the Tribunal to whom the matter was referred to. The learned Third Member in paragraphs 16.3 and 17.1 has expressed the view as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 39 (MP), it was held by the hon'ble Madhya Pradesh High Court that there is no appeal against the provisional assessment under section 141 of the Income-tax Act. Similarly in the case of CIT v. Garware Nylons Ltd. [1995] 212 ITR 242 (Bom), it was held that no appeal lies against the order under section 197(3) of the Income-tax Act. Prior to the amendment by the Finance Act, 1994, with effect from 1st June, 1994, there was no provision for appeal against the intimation under section 143(1)(a) of the Income-tax Act. Therefore, in view of the above mentioned decisions, an assessee can file appeal before the Tribunal only when it is provided in section 253 of the Income-tax Act. There is no appeal against administrative orders like, authorisation under section 132 or section 132A of the Income-tax Act and in the absence of appeal against the order under section 132 or section 132A of the Income-tax Act, the Tribunal has no jurisdiction to consider whether there was any information in the possession of the Commissioner of Income-tax to issue authorisation under section 132/132A of the Income-tax Act." 11. In the case of Orient Paper Mills Ltd. v. Union of India, AIR 1969 SC 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatingly that (1) petitioner' s rights under article 21 of the Constitution had been violated by the search and seizure of the properties as per the seizure list. (2) Commissioner and Inspector of Police had acted contrary to law and in fact contravened laws in the course of search and seizure, and by changing the records of investigation had committed serious violation of the system of the discipline of law under which alone they were required to act. (3) There was no occasion for taxing officers to intervene and in any case they had by-passed the court which alone was competent to decide about the custody of the properties allegedly seized in the course of investigation of a case registered with the police under section 102 of the Code of Criminal Procedure." 14. In the case of Rajesh Kumar [2006] 287 ITR 91, the apex court while interpreting the concept of special audit under section 142(2A) of the Act opined that the direction for special audit is not an administrative action as it leads to civil consequences and, therefore, the principles of natural justice are to be followed before direction for special audit are issued. 15. It is worth noting that the aforesaid decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. It does not confer any right of appeal on a company or its principal officer against an order passed by the Income-tax Officer under section 197(3) of the Act. Section 197(3) merely confers on the principal officer of the company in certain cases a right to make an application to the Income-tax Officer to determine the appropriate proportion of the dividend to be deducted under the provisions of section 80K and a duty on the Income-tax Officer to make the determination. No appeal is provided under section 248 or any other provision of the Act against the determination made by the Income-tax Officer under section 197(3) of the Act. No appeal shall, therefore, lie against such order." 20. In view of the aforesaid enunciation of law, we are of the considered opinion that the decisions cited by Mr. Nema are distinguishable as the law was laid down while dealing with the matters preferred under article 226 of the Constitution of India or the matters arose out of writ petitions in appeals before the apex court but in the case at hand the controversy pertains to an order passed by the Assessing Officer in respect of assessment and the appellate order arising therefrom. In our c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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