2009 (9) TMI 615 - AT - Income Tax

Search and Seizure penalty - before proceeding against any person other than the searched person under s. 158BD of IT Act, the law requires that a satisfaction to the effect that the documents found as a result of search give rise to undisclosed income of any other person other than the searched person, is required to be reached in the case of a person searched under s. 132 of IT Act - In the present case in appeal, no such satisfaction is found reached or recorded in the case of searched person - a notice under s. 158BC of IT Act which is also a condition essential for proceeding against such person has also not been met out though the condition of handing over of the seized documents can be deemed to have been satisfied as the AO of both the persons is of the same officer - preconditions of invoking jurisdiction under s. 158BD of IT Act are not satisfied, the notice so issued under s. 158BD of IT Act on the strength of which assessment of undisclosed income of the appellant has been made, quashed - penalty under s. 158BFA not leviable Appeal allowed

Issues Involved:
1. Sustaining of penalty under Section 158BFA(2).
2. Justification of the assessment and quantum of income assessed.
3. Rectification under Section 154.
4. Validity of jurisdiction under Section 158BD.
5. Applicability of peak credit theory.
6. Compliance with mandatory satisfaction recording under Section 158BD.
7. Barred by limitation.
8. Validity of the assessment order.

Detailed Analysis:

1. Sustaining of Penalty under Section 158BFA(2):
The appellant contested the penalty of Rs. 8,46,626 levied by the Asstt. CIT, Central Circle-I, Jodhpur, arguing that the CIT(A) erred in sustaining it. The Tribunal found that since the preconditions for invoking jurisdiction under Section 158BD were not satisfied, the penalty under Section 158BFA(2) was also not leviable. Consequently, the penalty was quashed.

2. Justification of the Assessment and Quantum of Income Assessed:
The appellant challenged the assessment and quantum of income assessed by the Dy. CIT, Central Circle-I, Jodhpur, which was upheld by the CIT(A). The Tribunal noted that the assessment was based on unexplained bank deposits found during a search. However, since the satisfaction required under Section 158BD was not recorded in the case of the searched person, the assessment was invalidated.

3. Rectification under Section 154:
The appellant argued that the CIT(A) erred in rejecting the application under Section 154, which sought rectification of errors in the appellate order. The Tribunal found that the CIT(A) had omitted to consider the principle of peak credit theory and other relevant judicial pronouncements. As the primary assessment was quashed, the rectification issue became moot.

4. Validity of Jurisdiction under Section 158BD:
The Tribunal emphasized that the mandatory satisfaction under Section 158BD was not recorded in the case of the searched person, Shri Vijay Raj Khariwal. The Revenue admitted that no such satisfaction note was available in the assessment record of the searched person. Hence, the jurisdiction under Section 158BD was invalid, and the notice issued under this section was quashed.

5. Applicability of Peak Credit Theory:
The appellant contended that the peak credit theory should have been applied to compute the undisclosed income. The Tribunal noted that the CIT(A) failed to consider this alternative plea. However, since the primary assessment was quashed due to jurisdictional defects, the applicability of the peak credit theory was not further addressed.

6. Compliance with Mandatory Satisfaction Recording under Section 158BD:
The Tribunal reiterated the Supreme Court's ruling in Manish Maheshwari vs. Asstt. CIT & Anr., which mandates that satisfaction must be recorded in the case of the searched person before proceeding under Section 158BD. In this case, no such satisfaction was recorded, rendering the proceedings null and void.

7. Barred by Limitation:
The appellant argued that the assessment was barred by limitation. The Tribunal did not specifically address this issue, as the primary assessment was quashed due to jurisdictional defects.

8. Validity of the Assessment Order:
The appellant claimed that the assessment order was bad in law and facts. The Tribunal agreed, finding that the preconditions for invoking Section 158BD were not met. Consequently, the assessment order was quashed.

Conclusion:
All the appeals by the assessee were allowed, quashing the assessment order and the penalty under Section 158BFA. The Tribunal emphasized the importance of recording satisfaction under Section 158BD in the case of the searched person, as mandated by the Supreme Court in Manish Maheshwari vs. Asstt. CIT & Anr.

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