2010 (1) TMI 717 - HC - Income Tax

Block assessment - material or evidence gathered in the course of search in the place of another person - Held that - All what the assessing officer has done is rejection of cash flow statement and estimation of income based on investment made by the assessee in the Hotel business and once assessment proceedings are initiated under Section 158BD based on evidence found in the course of search about undisclosed income of the person other than the person searched, then it would be open to the assessing officer to make use of any other information available with him or collected by him for making block assessment for such period. Since the finding of the Tribunal that assessment is solely based on cash flow statement furnished by the assessee is factually incorrect and since the assessment is based on information collected in the form of Balance Sheet and other documents of the firm, M/s. Hotel Indraprastha seized from Anandan in the course of search carried out in his premises, the block assessment under Section 158BD read with Section 158BD is tenable as found by the CIT (Appeals). - Decided in favor of revenue.

Summary

Issues:
Validity of assessment under Section 158BD based on evidence gathered during search in another person's premises.

Analysis:
The High Court of Kerala heard an appeal filed by the revenue challenging the Tribunal's decision to quash the block assessment against the respondent-assessee for the block period 1.4.1987 to 10-3-1998. The revenue contended that the assessment was based on evidence gathered during a search at the premises of another person, Sri Anandan, who was a partner with the respondent-assessee in a business. The respondent-assessee had made investments in a partnership firm, M/s. Hotel Indraprastha, as indicated by the Balance Sheet seized during the search at Anandan's premises. The assessing officer issued a notice under Section 158BC read with Section 158BD based on this information, leading to the assessment of undisclosed income for the block period. The respondent challenged the assessment, arguing that it was not based on any evidence from the search. The CIT (Appeals) upheld the assessment with modifications, and both the department and the assessee appealed. The Tribunal allowed the cross-objections, canceling the assessment, which led to the revenue's appeal to the High Court.

The main issue was whether the assessment under Section 158BD was valid in this case. Section 158BD allows for block assessment against any person if undisclosed income belongs to them based on evidence seized during the search of another person. The assessing officer, in this case, had jurisdiction to assess the respondent-assessee based on the information from the search at Anandan's premises. The Tribunal held that the assessment was not based on evidence from the search, but the High Court disagreed. The High Court found that the assessment was primarily based on the Balance Sheet seized from Anandan, showing investments made by the respondent-assessee in the partnership firm. The cash flow statement provided by the assessee was used to determine the source of investment, not as the basis for the assessment. Therefore, the High Court concluded that the block assessment under Section 158BD was valid, overturning the Tribunal's decision.

In conclusion, the High Court allowed the appeal by reversing the Tribunal's order and remanded the case back to the Tribunal for a decision on merits after hearing both parties. Any other issues raised in the cross-objections regarding additions sustained by the CIT were also to be considered by the Tribunal along with the departmental appeal.