TMI Blog2001 (4) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ). The short facts necessary for disposal of these petitions which are required to be stated are as under. Respondent No. 2, Ambica Realities Pvt. Ltd., is a company registered under the Companies Act, 1956, having its office at Rajkot. The petitioner is a silent director of the said respondent No. 2-company whereas one Mr. D. V. Jethani was the managing director who was controlling finance as well as other business activities of the said company. The Revenue carried out search and seizure proceedings under section 132 of the Act in December, 1996, at the office premises of the company as well as the residential premises of the directors including the residential premises of the petitioner herein. During the search proceedings, certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . T. (SS) No. 7/RJT of 1998, challenging the additions on a protective basis. The petitioner, being not a party to the appeal preferred by the company was not aware about the hearing of the matter. However, as the petitioner came to know that the matter was heard by the Tribunal, the petitioner addressed a letter on February 29, 2000, to the Tribunal. The relevant part of the letter reads as under. "I understand that appeal filed by Ambica Realities Pvt. Ltd., bearing ITA (SS) No. II/R/98 has already come up for hearing on February 28, 2000. The issue involved therein has connection with my appeal. My appeal is at present fixed for hearing on March 13, 2000. I am approaching your honours through this petition with a request to kindly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that without hearing the petitioner, the Tribunal has fastened the liability on the petitioner to a very large extent which is not permissible under the law. Mr. S. N. Soparkar, learned counsel appearing for the company, submitted that he has no objection if the part by which the petitioner is aggrieved is removed from the impugned judgment. According to his submission, findings are recorded by the Tribunal so far as the respondent-company is concerned on the material placed on the record and after hearing counsel for the Revenue, hence, at least that finding should not be disturbed. He was required to argue as the Revenue submitted that it would have been proper for the Tribunal if both the matters would have been heard together a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of persons whose names are there or you can get the correct information from the director of the company. I am silent director of the company having no business power'. Thus, according to learned counsels it is clear that Shri M. N. Patel was not sure whether the property actually belongs to Ambica Realities or to someone else. He was not having any information about the transaction as mentioned on the paper, he was only a silent director of the company.". After keeping these aspects in mind, the Tribunal in para. 24 has observed as under : "Shri M. N. Patel has not explained in his statement why this paper, was banded over to him by Shri jethani. The contention of Shri M. N. Patel that he was not aware about the contents of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not examined the persons and no reasons have been placed on record. After indicating certain transactions in the said para at the end the Tribunal has observed as under. "This would have been clinching evidence to prove the nexus of the seized papers with the assessee-company or with Shri M. N. Patel. This has not been done by the Assessing Officer, therefore, it cannot be used as an evidence against the assessee-company". In para. 25, the Tribunal has also recorded as under "The Assessing Officer has also not caused necessary enquiries to find the real nature of these seized papers and he has also not established with evidence to whom these papers actually belong." Reading that part of the order, it is clear that there is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isposed of both the matters after giving an opportunity to the parties. If such procedure would have been adopted, no injustice would have been caused either to the assessee or to the Revenue. In a case of protective assessments the Allahabad High Court in the case of Smt. Hemlata Agarwal v. CIT [1967] 64 ITR 428 had an occasion to consider as to what the Tribunal ought to have done in a case like this which was to hear both the appeals together and finally determine as to whether the impugned sum was at all the income of the husband or the wife. So far as the contention of Mr. Soparkar that the entire order should be quashed and not in part is concerned, it is required to be noted that the Tribunal has decided several issues and it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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