2020 (11) TMI 897 - AT - Income Tax

Validity of the assessment framed under section 158BD - assumption of jurisdiction by the Assessing Officer - assessment of undisclosed income of the block period as per section 158BC - Penalty proceedings u/s 158BFA - specific information relating to the accommodation entry taken by the assessee - addition of undisclosed income - HELD THAT - We hold that the jurisdiction assumed in the present case under section 158BD was not as per law in the absence of fulfilment of the necessary condition of handing over of incriminating material relating to the assessee by the Assessing Officer of the searched person to the Assessing Officer of the assessee. A bare reading of the provisions of the Act clearly bring out that for the assumption of jurisdiction under section 158BD of the Act it is a necessary prerequisite for the incriminating material relating to the third person being handed over to his Assessing Officer by the Assessing Officer of the searched person,. The section clearly states the handing over of all material relating to the third person to his Assessing Officer and only thereafter the Assessing Officer can proceed to frame assessment of undisclosed income relating to the block period on such third person. In the present case Supply of specific information relating to the assessee was sufficient for assuming jurisdiction under section 158BD of the Act even in the absence of seized material relating to the assessee being passed on.Thus it is an uncontroverted fact that seized material relating to the assessee was never handed over to the Assessing Officer as categorically required by section 158BD of the Act. Firstly the fact of accommodation entry through cheque is not a specific information but a conclusion of the AO of the searched per son on the basis of certain document sets found during search proceedings. It is these documents, etc., relating to the assessee which ought to have been handed over to his Assessing Officer by the Assessing Officer of the searched person, as per section 158BD of the Act, so as to enable him to assess the undisclosed income of the assessee. In the absence of the basic documents evidencing accommodation entry being provided to the asses see, the bank account number or the person from whom entry received can be of no assistance to the Assessing Officer of the assessee for assessing the undisclosed income of the assessee. Therefore in the present case even specific information was not passed to the Assessing Officer of the assessee as contended by the Revenue and therefore the contention that passing on of specific information constituted or was equivalent to handing over seized material, merits no consideration and is rejected. In the light of the aforesaid fact and considering the mandate of section 158BD of the Act as interpreted by the hon'ble Supreme Court in the case of Manish Maheshwari 2007 (2) TMI 148 - SUPREME COURT the assumption of jurisdiction by the Assessing Officer in the present case under section 158BD of the Act we hold was not as per law. The assessment framed as a consequence thereof is void and accordingly is quashed. Ground of appeal Nos. 1, 2 and 3 are accordingly allowed.

Summary

Issues Involved:
1. Validity of jurisdiction assumed under section 158BD of the Income-tax Act, 1961.
2. Merits of the addition made for long-term capital gains.
3. Penalty levied under section 158BFA of the Income-tax Act, 1961.

Detailed Analysis:

1. Validity of Jurisdiction Assumed under Section 158BD of the Income-tax Act, 1961:
The primary contention raised was whether the jurisdiction assumed by the Assessing Officer (AO) under section 158BD was valid. The assessee argued that the necessary prerequisites for assuming jurisdiction, including the satisfaction of the AO of the searched person and the handing over of incriminating material to the AO of the assessee, were not fulfilled. The AO of the searched person had passed only information and opinion without any incriminating material. The Tribunal referred to various case laws, including the Supreme Court’s judgment in Manish Maheshwari v. Asst. CIT, which mandates that satisfaction and handing over of seized material are prerequisites for assuming jurisdiction under section 158BD. The Tribunal concluded that the jurisdiction assumed by the AO was not as per law due to the absence of incriminating material being handed over, thereby quashing the assessment framed under section 158BD.

2. Merits of the Addition Made for Long-Term Capital Gains:
The AO had added ?9,97,500 as income from undisclosed sources, alleging that the transactions of purchase and sale of shares were not genuine but mere paper transactions to introduce undisclosed money. The assessee contended that these transactions were disclosed in his regular return of income and that the shares were sold and proceeds realized before the search. However, since the Tribunal quashed the assessment on jurisdictional grounds, the merits of the addition were rendered infructuous and were not adjudicated.

3. Penalty Levied under Section 158BFA of the Income-tax Act, 1961:
The penalty was levied on the undisclosed income assessed under section 158BD read with section 158BC. Since the Tribunal held the assessment to be without jurisdiction and quashed it, the penalty levied also did not survive. Consequently, the appeal against the penalty was allowed.

Conclusion:
The Tribunal allowed both the appeals of the assessee. The assessment framed under section 158BD was quashed due to the invalid assumption of jurisdiction, and the penalty levied under section 158BFA was consequently annulled. The grounds relating to the merits of the case were not adjudicated as they became infructuous.