2003 (3) TMI 651 - AT - Income Tax

Summary

Issues:
Jurisdiction under section 158BC challenged due to lack of warrant of authorization in the name of the assessee.

Analysis:
The appeal challenged the jurisdiction to assess the assessee under section 158BC due to the absence of a "warrant of authorization" in the name of the assessee. The appellant argued that since the warrant was in the name of the husband of the assessee and not in her name, the assessment under section 158BC was not valid. The authorized officer recorded the statement of the assessee as the "wife of Mr. Kailash Mudgil," indicating the absence of a warrant in her name. The Senior DR admitted the lack of authorization in the name of the assessee but contended that since the warrant was in her husband's name and the assessee resided with him, no separate authorization was necessary. The Senior DR also argued that even without the warrant in the assessee's name, the assessment could be considered under section 158BD due to the seizure of the passbook during the search of the husband.

Further Analysis:
The appellant's counsel emphasized that the absence of the warrant of authorization in the assessee's name rendered the assessment under section 158BC unsustainable. The counsel argued that the provisions of section 158BD should be strictly construed, and there should be objective satisfaction recorded to invoke it. The counsel referred to relevant case laws and highlighted the necessity of specific conditions being met before invoking section 158BD. The counsel also pointed out that the mere existence of the passbook during the search did not empower the Assessing Officer to determine undisclosed income belonging to the assessee.

Conclusion:
After hearing both parties, the Tribunal concluded that the assessment under section 158BC was not sustainable due to the absence of a warrant of authorization in the name of the assessee. The Tribunal highlighted that section 158BC requires a specific person under search, and without the warrant in the assessee's name, the assessment was deemed null and void. The Tribunal rejected the argument that the assessee could be impliedly covered under section 132 without specific material against her. Additionally, the Tribunal dismissed the alternative argument to treat the assessment under section 158BD, emphasizing the strict interpretation required for such provisions. The Tribunal found the assessment unsustainable from any perspective and allowed the appeal solely on the jurisdictional ground, without delving into other merits.