2009 (3) TMI 1030 - AT - Income Tax

Summary

Issues Involved:
1. Validity of action u/s 158BD.
2. Adequacy of opportunity and principles of natural justice.
3. Ownership of cash Rs. 22,35,000.
4. Determination of undisclosed income.
5. Seizure of Rs. 2,15,000 from Smt. Jayaben Govindbhai Patel.
6. Credit for retained cash and accrued interest.
7. Charging of interest u/s 158BFA.
8. Charging of surcharge on computed tax.

Summary:

1. Validity of action u/s 158BD:
The assessee challenged the validity of the assessment passed u/s 158BD of the IT Act, 1961. The AO initiated proceedings based on information received from Dy. CIT, Circle 10 and 11, Ahmedabad, regarding cash seized by police and subsequently by the IT Department. The AO concluded that the cash belonged to the assessee and initiated action u/s 158BD to examine the sources of the cash.

2. Adequacy of opportunity and principles of natural justice:
The assessee contended that the assessment order was passed without adequate opportunity, violating principles of natural justice. The CIT(A) held that adequate opportunity was given, and the evidences furnished during assessment and appellate proceedings were considered.

3. Ownership of cash Rs. 22,35,000:
The assessee claimed the cash belonged to various concerns of Labh Group and was handed over to Shri Harin K. Shah for safe custody. The AO, after examining the books of account, found discrepancies and concluded that the cash was the undisclosed income of the assessee.

4. Determination of undisclosed income:
The AO determined the undisclosed income at Rs. 22,35,000, despite the cash seized being Rs. 19,13,000. The CIT(A) confirmed this determination.

5. Seizure of Rs. 2,15,000 from Smt. Jayaben Govindbhai Patel:
The AO included Rs. 2,15,000 seized from Smt. Jayaben Govindbhai Patel as the assessee's undisclosed income. The CIT(A) upheld this inclusion, even though no such finding was given in her assessment u/s 158BC.

6. Credit for retained cash and accrued interest:
The AO did not grant credit for the retained cash of Rs. 19,13,000 and accrued interest while issuing the demand notice on the block assessment. The CIT(A) confirmed this action.

7. Charging of interest u/s 158BFA:
The AO charged interest amounting to Rs. 19,276 u/s 158BFA. The CIT(A) upheld this charge.

8. Charging of surcharge on computed tax:
The AO charged a surcharge of Rs. 2,01,150 on the computed tax, despite the relevant block period not requiring surcharge as per s. 113 of the IT Act. The CIT(A) confirmed this charge.

Tribunal's Decision:
The Tribunal quashed the assessment order framed u/s 158BD, holding it null and void due to the notice u/s 143(2) being served beyond the prescribed period of twelve months from the end of the month in which the return was filed. The Tribunal relied on various judicial pronouncements, including Smt. Bandana Gogoi vs. CIT and Kuber Tobacco Products (P) Ltd. vs. Dy. CIT, which supported the requirement of timely notice u/s 143(2). The Tribunal also rejected the Departmental Representative's contention regarding the retrospective application of s. 292BB, citing the Delhi Special Bench's decision in Kuber Tobacco Products (P) Ltd. vs. Dy. CIT. Consequently, the appeal was allowed, and the assessment order was quashed without deciding the appeal on merits.