2012 (8) TMI 908 - AT - Income Tax

Validity of assessment completed u/s. 158BD and u/s. 158 BC - CIT(A) quashed the assessment proceedings - Held that - As relying on case of CIT vs. Lekshmi Traders 2010 (11) TMI 467 - KERALA HIGH COURT we agree with the contentions of the department that the assessment cannot be held as void ab initio if the Assessing Officer did not mention the relevant section correctly in the assessment order. Accordingly we set aside the orders of the Ld. CIT(A) on this point. Since the Ld. CIT(A) did not adjudicate the appeals on merits we set aside both the appeals to his file for adjudicating the grounds raised on merits. In the case of Shri V.H.Yahia the Ld CIT(A) has also held that the assessment is barred by limitation. Since the decision of Ld CIT(A) in respect of the jurisdiction of the Assessing Officer is set aside we set aside the issue relating to the limitation also to his file with the direction to examine the same afresh in the set aside proceedings. - Decided in favour of revenue for statistical purposes.

Summary

Issues:
1. Validity of assessment completed under section 158BC in the case of the appellant firm.
2. Validity of assessment completed under section 158BD in the case of an individual.
3. Correctness of mentioning the relevant section in the assessment order.

Analysis:

Issue 1: Validity of assessment under section 158BC for the appellant firm
The appellant firm contended that no search and seizure operation took place in their hands, thus challenging the legal validity of the block assessment under section 158BC. The Ld. CIT(A) agreed with this contention, stating that the search was conducted in the cases of specific individuals and not the appellant firm. The Ld. CIT(A) emphasized that the warrant of authorization for search must be issued against a person, not premises, for the assessment under section 158BC to be valid. Consequently, the assessment under section 158BC for the appellant firm was declared void ab initio and quashed.

Issue 2: Validity of assessment under section 158BD for an individual
The Ld. DR argued that the assessment under section 158BD should be completed under section 158BC, citing the decision in the case of CIT vs. Lekshmi Traders. The Hon'ble Jurisdictional High Court clarified that no separate notice is required under section 158BD, and the procedure for assessment of a person other than the searched person is the same as under section 158BC. Therefore, the assessment under section 158BD is also to be completed under section 158BC. The tribunal concurred with this interpretation, setting aside the Ld. CIT(A)'s decision on this point.

Issue 3: Correctness of mentioning the relevant section in the assessment order
The tribunal considered the Lekshmi Traders case, where it was established that the notice issued for block assessment should comply with the procedure prescribed under the relevant sections. The tribunal emphasized that if the assessee acknowledges receipt of the notice and files a return accordingly, the notice is deemed to be served correctly. Even if the Assessing Officer erroneously mentioned the section in the notice, as long as the contents fulfill the requirements of the relevant section, the assessment cannot be deemed void ab initio. Consequently, the tribunal set aside the Ld. CIT(A)'s decision on this matter.

Therefore, the tribunal allowed the Revenue's appeals for statistical purposes, dismissing the Cross Objections filed by the assesses. The cases were remanded to the Ld. CIT(A) for adjudication on the merits, including the issue of limitation in the case of Shri V.H. Yahia.