2015 (9) TMI 901 - AT - Income Tax

Validity of assessment under Section 158BD - Determination of total undisclosed income - Held that - The satisfaction note was recorded by the Assessing Officer of the appellant instead of Assessing Officer of searched person. Therefore, it has to be inferred that no satisfaction note was recorded, as per the law laid down by in the case of Manish Maheshwari Vs. CIT, 2007 (2) TMI 148 - SUPREME COURT OF INDIA . Furthermore, the assessment in the case of searched person i.e. Mr. Manoj Kumar Aggarwal, completed on 29th August, 2002 and the notice under Section 158BD in this case was issued on 15th April, 2004 that is nearly after lapse of two years and two months. The Hon ble Apex Court in the case of CIT Vs. Calcutta Knitwears, 2014 (4) TMI 33 - SUPREME COURT held that the recording of satisfaction on the issue of notice under Section 158BD should be done (a) at the time or along with the initiation of proceedings against the searched person under Section 158BC of the Act, (b) along with the assessment proceeding under Section 158BC of the Act, and (c) immediately after assessment proceedings are completed under Section 158BC of the Act of the searched person. The period of limitation prescribed under Section 158BC cannot be extended by issuing the belated notice under Section 158BD. The Hon ble Jurisdictional High Court in the case of CIT Vs. Bharat Bhushan, 2015 (1) TMI 705 - DELHI HIGH COURT held that having regard to the intent of the Hon ble Supreme Court in Calcutta Knitwears, 2014 (4) TMI 33 - SUPREME COURT , the completion of assessment under Section 158BD of the Act nearly after one year, cannot be considered contemporaneous to the assessment proceedings of searched persons. Therefore, the Hon ble High Court held that the delay in completion of assessment under Section 158BD vitiates the very proceedings itself. Applying the same ratio in this case, the assessment proceedings cannot be sustained in the eyes of law on this score alone - Decided in favour of assessee.

Issues Involved:
1. Determination of total undisclosed income.
2. Assumption of jurisdiction under Section 158BD of the Income Tax Act.
3. Validity of the satisfaction note.
4. Jurisdiction of the assessing officer.
5. Addition of short-term capital loss.
6. Addition of alleged commission paid.
7. Levy of interest under Section 158BF A.

Detailed Analysis:

1. Determination of Total Undisclosed Income:
The appellant contested the CIT(A)'s decision to uphold the determination of total undisclosed income at Rs. 1,48,989/- against the nil undisclosed income declared by the appellant. The tribunal examined the basis for this determination, which stemmed from transactions involving the purchase and sale of shares through M/s Friends Portfolio Pvt. Ltd. The Assessing Officer had treated the payment of Rs. 1,46,069/- as undisclosed investments and brought it to tax along with a commission of Rs. 2,920/- believed to have been paid for accommodation entries.

2. Assumption of Jurisdiction under Section 158BD:
The appellant challenged the jurisdiction assumed under Section 158BD, arguing that the statutory preconditions for initiating action were not satisfied. The tribunal noted that the satisfaction note was not recorded by the Assessing Officer of the searched person, which is a prerequisite for assuming jurisdiction under Section 158BD. The tribunal emphasized that the satisfaction must be recorded based on material found during the search and must be in writing.

3. Validity of the Satisfaction Note:
The tribunal found that the satisfaction note was recorded by the Assessing Officer of the appellant instead of the Assessing Officer of the searched person, Mr. Manoj Kumar Aggarwal. This was in violation of the legal requirement as laid down by the Hon'ble Supreme Court in Manish Maheshwari Vs. CIT, which mandates that the satisfaction must be recorded by the Assessing Officer of the searched person.

4. Jurisdiction of the Assessing Officer:
The appellant argued that the assessment framed by the Assistant Commissioner of Income Tax, Circle-29(1), New Delhi, was without jurisdiction since the appellant's jurisdiction lay with the Income Tax Officer, Ward-2, Rohtak. The tribunal did not specifically address this issue in detail but focused on the validity of the satisfaction note and the timing of the proceedings.

5. Addition of Short-Term Capital Loss:
The CIT(A) had upheld the addition of Rs. 1,46,069/- representing short-term capital loss declared by the appellant, considering it an accommodation entry. The tribunal noted that the entire foundation for this addition was the statement of Mr. Manoj Kumar Aggarwal and the transactions involving M/s Friends Portfolio Pvt. Ltd. The tribunal found that no books of account or other assets pertaining to the appellant were found or seized during the search.

6. Addition of Alleged Commission Paid:
The CIT(A) had also upheld the addition of Rs. 2,920/- representing alleged commission paid by the appellant for obtaining an accommodation entry. The tribunal did not find merit in the CIT(A)'s decision, given the lack of proper satisfaction recording and the timing of the proceedings.

7. Levy of Interest under Section 158BF A:
The appellant contested the levy of interest under Section 158BF A. The tribunal's decision to allow the appeal on the grounds of improper jurisdiction and invalid satisfaction note inherently addressed this issue, leading to the quashing of the entire proceedings, including the levy of interest.

Conclusion:
The tribunal allowed the appeal filed by the appellant, quashing the assumption of jurisdiction under Section 158BD and the additions made. The tribunal emphasized the necessity of recording satisfaction by the Assessing Officer of the searched person and the timely initiation of proceedings as per the legal requirements. The decision was pronounced in the open court on 9th September 2015.

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