TMI Blog2019 (12) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in accordance with law. Validity of search - Admittedly, the authorities were under an obligation to examine the validity of the search and thereafter only to proceed to initiate the block assessment proceeding, which has not been done in the instant case. Therefore, the second substantial question of law framed is also answered in favour of the assessee and against the revenue. Challenge the action of the AO to assess u/s 158BC when the condition precedent are not existing as much as for computation of income u/s 158BC - From perusal of the material on record, it is evident that there was no seizure with regard to the assessment year 1988-89 and 1989-90 during the course of the search and seizure operations. However, the Assessing Officer while computing the undisclosed income has taken into account the income in respect of the aforesaid case also and thus the order passed by the Assessing Officer is in violation of Section 158BC(c) of the Act and therefore, the Tribunal was not justified in holding that there is no merit to challenge the action of Assessing Officer to assess under Section 158BC(c) of the Act. Accordingly, the third substantial question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for promoting housing schemes, land development and selling of plot on behalf of owners on commission or service charges. 4. The appellant filed his return of income for the assessment years 1991-92 to 1998-99. The aforesaid returns were processed under Section 143(1) of the Act. On 19.11.1998 search under Section 132 of the Act was conducted in the residential premises of the appellant and a notice under Section 158BC of the Act was issued to the appellant by which the appellant was required to file his return of income. In response to the aforesaid notice, the appellant filed the return of income for the block period i.e., 01.04.1998 to 19.11.1998 and declared an additional income of ₹ 4,53,156/-. Thereafter, a notice under Section 143(2) of the Act was issued to the appellant and the appellant was directed to produce all the details. 5. The Assessing Officer passed an order of assessment on 28.11.2000 under Section 158BC(c) and determined undisclosed income of the appellant at ₹ 1,63,54,846/-. Being aggrieved, the appellant filed an appeal before the Commissioner of Income Tax (Appeals). The appeal was decided by an order dated 23.08.2002 which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, learned counsel for the revenue while placing reliance on Full Bench decision of the Allahabad High Court in the case of Commissioner of Income Tax vs. Devesh Singh (2012) 252 CTR (All.) 356, has taken us to the statement of objections for incorporation of Section 292CC of the Act and has submitted that it is not necessary to issue an authorization under Section 132 or to make a requisition under Section 132A separately in the name of each person. 10. We have considered the submissions made by learned counsel for the parties and have perused the record. 11. Before proceeding further, it is apposite to take note of the relevant provisions of the Act namely Section 158BC(c) and Section 292CC of the Act which reads as under: 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 befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made separately in the name of each of the persons mentioned in such authorisation or requisition. 12. From perusal of Section 158BC of the Act, it is evident that while computing the undisclosed income for the block period, the evidence found as a result of search or requisition of books of account or other books of account and such other material or information as are available with the Assessing Officer and relatable to such evidence has to be taken into consideration. In other words, it is evident that the computation of undisclosed income should be based on such evidence which is seized during the search which is not accounted in the regular books of account. 13. From perusal of Section 292CC of the Act which has come into force with effect from 01.04.1976, it is axiomatic that it merely provides that it shall not be necessary to issue an authorization under Section 132 of the Act or make a requisition under Section 132A of the Act separately in the name of each person. However, it is pertinent to note that where an authorization is made in the name of more than one person, the aforesaid section does not provide that the names of such persons need not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
