2009 (12) TMI 987 - AT - Income Tax

Block assessment proceedings u/s 158BD - period of limitation - Undisclosed income of another person u/s 158BD - HELD THAT - The time limit set in sec. 158BE automatically applies for invoking the provisions of sec. 158BD. Legislature did not find it necessary to specify the separate time limit for the same as the enactment itself shows that both section 158BC and 158BD are inter-linked inter-laced interwined and both form part and parcel of the same Chapter. Respectfully following the decision of Manoj Agarwal s case 2008 (7) TMI 446 - ITAT DELHI-A we hold that the notice dated 19.4.2004 issued u/s 158BD is time barred and therefore the assessment framed on 27.2.2006 u/s 158BD read with sec. 158BC is without jurisdiction and void ab initio. Accordingly we quash the assessment order dated 27.2.2006 framed u/s 158BD read with section 158BC. Where material found in search is glaringly apparent that it belongs to a third person other then the person searched then no specific satisfaction is required to be recorded and therefore it is not necessary to issue notice under section 158BD before the closure of the assessment of the person searched. It is for the AO to decide while examining the ceased material that it belongs to the person searched or to a third person. Whether such distinction is glaring or not is not material as legal requirement is that of satisfaction of the AO which cannot be done away with. Accordingly the principles laid down in the two cases i.e. Manish Maheshwari s case 2007 (2) TMI 148 - SUPREME COURT and Manoj Agarwal s case would have to be followed. All the points raised by the ld. DR have been considered in Manoj Agarwal s case and therefore are not required to be separately considered. Thus respectfully following the decision in Manoj Agarwal s case 2008 (7) TMI 446 - ITAT DELHI-A as well as Kuntesh Bhupatrai Desai s case we cancel the assessment and allow the appeal of the assessee. Appeal of the assessee is allowed.

Summary

Issues:
1. Time-barred order under section 158BD
2. Opportunity to confirm with builder for seized documents
3. Admission of additional evidence under Rule 46A
4. Taxation of lesser sum as undisclosed income
5. Assessment of income from agriculture and compensation

Issue 1: Time-barred order under section 158BD
The appellant challenged the order of the ld. CIT(A) on the grounds that the order was time-barred under section 158BD. The appellant argued that the notice under section 158BC was issued after the order under section 158BC was passed in the case of Om Developers. Citing the decision in Manoj Agarwal's case, it was contended that the notice under section 158BD should have been issued before passing the order under section 158BC in the case of the person searched. The ITAT, Ahmedabad Bench, relying on the decision of the ITAT, Delhi Special Bench, held that the notice issued under section 158BD after the time limit specified in section 158BE is time-barred. Consequently, the assessment framed under section 158BD was deemed without jurisdiction and void ab initio, leading to the quashing of the assessment order.

Issue 2: Opportunity to confirm with builder for seized documents
The appellant contended that the Assessing Officer erred in not allowing the opportunity to confirm with the builder from whom documents were seized. However, the ITAT's decision did not address this specific issue as the assessment order was quashed on the grounds of being time-barred under section 158BD.

Issue 3: Admission of additional evidence under Rule 46A
The appellant argued that the ld. CIT(A) erred in not admitting additional evidence under Rule 46A, which should have been referred to the Assessing Officer in the interest of justice. However, the ITAT did not delve into this issue as the assessment order was canceled based on the time-barred nature of the notice under section 158BD.

Issue 4: Taxation of lesser sum as undisclosed income
The appellant raised concerns regarding the taxation of a lesser sum as undisclosed income, contending that the amount taxed was lower than what was considered undisclosed income. However, this issue was not addressed by the ITAT as the assessment order was annulled on the basis of being time-barred under section 158BD.

Issue 5: Assessment of income from agriculture and compensation
The appellant asserted that the Assessing Officer failed to appreciate that the appellant was an agriculturist with sufficient income from agriculture and compensation from land acquired under a specific project. The ITAT did not address this issue separately as the assessment order was canceled due to being time-barred under section 158BD.

In conclusion, the ITAT, Ahmedabad Bench allowed the appeal of the assessee based on the time-barred nature of the notice under section 158BD, rendering the assessment order void ab initio. The decision did not delve into the other issues raised by the appellant, as the cancellation of the assessment order on the grounds of being time-barred made further discussion unnecessary.