2010 (10) TMI 663 - HC - Income Tax

Survey instead of search - Powers of survey u/s 133A - proceedings i.e. search and block assessment which followed such survey - Held that - the scope of survey under section 133A includes verification of cash with respect to books of account. In this case, the cash found in the person of the appellant was to be verified with respect to books of account and for this purpose, survey under section 133A was carried out. The assessee was accompanied to his office and he could not satisfactorily explain the nature of possession of cash found with him along with evidence and accordingly, survey was converted into search. - it was not open to the assessee to question the legality and validity of search and seizure proceedings during assessment proceedings before the Assessing Officer or in appeal before the Commissioner of Income-tax or the Tribunal. Assessment order - Whether in the facts and circumstances of the case, the assessment order was made on the basis of instructions and dictates of other authorities and if so whether such assessment is not bad in law? - Held that - The Assessing Officer is free to complete the assessment on the basis of materials available on record and on the basis of the appellant s explanation. There is no such direction as alleged by the appellant in the instant case. - the question raised by the assessee is a pure question of fact that has already been answered by the forum below against the assessee.

Issues Involved:
1. Validity of survey under section 133A at the airport.
2. Assessment order based on instructions and dictates of other authorities.
3. Addition of Rs. 24,85,000 as unexplained cash.
4. Treatment of various persons as benamidars.
5. Addition of Rs. 22,13,218 as unexplained cash credit.
6. Summary rejection of appeals and remanding matters without speaking order.
7. Validity of notice under section 153C and subsequent assessment.
8. Protective assessment under section 153C.
9. Estimation of profit and unexplained investment.
10. Disallowance of interest expenses.
11. Income from excise consultancy activity.
12. Recording of satisfaction for initiating proceedings under section 153C.

Detailed Analysis:

1. Validity of Survey under Section 133A at the Airport:
The court addressed whether a survey under section 133A could be conducted at the airport on a person getting out of an aircraft instead of a search under section 132(1)(B)(iia). The court held that the validity of search proceedings cannot be questioned during assessment proceedings before the Assessing Officer or in appeal before the Commissioner of Income-tax or the Tribunal. The court relied on precedents such as *Ajit Jain v. Union of India* and *CIT v. Paras Rice Mills* to conclude that the legality of search and seizure proceedings should be challenged through writ petitions and not in assessment proceedings.

2. Assessment Order Based on Instructions and Dictates of Other Authorities:
The assessee argued that the assessment order was influenced by directions from the appraisal report. The Commissioner of Income-tax (Appeals) and the Tribunal found no evidence that the Assessing Officer acted under the dictates of other authorities. The court upheld these findings, noting that the appraisal report serves as a guide and does not influence the Assessing Officer's independence.

3. Addition of Rs. 24,85,000 as Unexplained Cash:
The assessee contended that the cash was legitimately withdrawn from M/s. Carol Barter (P) Ltd. The Tribunal restored the matter to the Assessing Officer for fresh adjudication, emphasizing the need for a thorough investigation. The court found no substantial question of law in this procedural decision.

4. Treatment of Various Persons as Benamidars:
The Tribunal's detailed examination led to the conclusion that the individuals were benamidars of Trilok Singh Dhillon. The court upheld this finding, noting that it was based on uncontroverted material and could not be deemed perverse.

5. Addition of Rs. 22,13,218 as Unexplained Cash Credit:
The court found that the addition under section 68 was justified as the assessee failed to provide confirmation of the gifts, details of the relationship, and the creditworthiness of the donors. The court determined that this issue was a question of fact and did not involve any substantial question of law.

6. Summary Rejection of Appeals and Remanding Matters Without Speaking Order:
The appellants did not press these issues, and thus, the court did not consider them.

7. Validity of Notice under Section 153C and Subsequent Assessment:
The Tribunal held that the Assessing Officer had enough evidence to issue the notice under section 153C and that the subsequent notice was issued as a matter of abundant precaution. The court found no illegality or infirmity in the Tribunal's findings.

8. Protective Assessment under Section 153C:
The Tribunal justified protective assessments to safeguard the Revenue's interest, relying on the Supreme Court's decision in *Lalji Haridas v. ITO*. The court agreed with this approach.

9. Estimation of Profit and Unexplained Investment:
The Tribunal restored the matter to the Assessing Officer to re-compute profit based on similar cases. The court found no substantial question of law in this procedural decision.

10. Disallowance of Interest Expenses:
The Tribunal disallowed the interest expenses, concluding that the firm was an instrument to finance Trilok Singh Dhillon's money. The court upheld this finding, agreeing that the assessees were benamidars.

11. Income from Excise Consultancy Activity:
The Tribunal rejected the claim of income from excise consultancy activity, finding that the assessee was a benamidar. The court agreed with the Tribunal's reasoning.

12. Recording of Satisfaction for Initiating Proceedings under Section 153C:
The Tribunal found that the Assessing Officer had recorded satisfaction based on the seized material. The court upheld this finding, noting that the matter would be reconsidered by the Assessing Officer with an opportunity for the assessee to be heard.

Conclusion:
The court dismissed the appeals, deciding all issues in favor of the Revenue and against the appellants/assessees, with no order as to costs.

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