9911796707
TMI Blog2004 (2) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... r s. 132(1) Act took place at the premises of the assessee as well as residential premises of the found and seized and notice under s. 158BC of the Act was issued. In response to such notice, the return of undisclosed income at nil was filed. During the course of assessment proceedings, the AO noted that the assessee has claimed deduction under s. 80-IA of the Act on account of its slitting activities of photographic paper at Silvasa claiming it to be manufacturing activity. The Silvasa Plant was also surveyed under s. 133A of the Act on 22nd Dec., 1999 and certain documents were identified. During the course of survey, the statement of Shri B.K. Sharma, slitting supervisor of Silvasa Plant was also recorded. In his statement, he stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the CIT(A), the learned counsel raised preliminary objection to the effect that notice under s. 158BC of the Act was issued by the ITO, whereas the same should have been issued by an officer not below the rank of Asstt. CIT. For this purposes, the reliance was placed on the provisions contained in s. 158BG of the Act. He also stated that after search and seizure operation, the ITO does not have jurisdiction and, therefore, the order under s. 158BC of the Act passed by the AO was illegal. He also stated that in the instant case, the original returns for the relevant years were filed. These were accepted under s. 143(1)(a) of the Act. It was stated that the claim of deduction under s. 80-IA of the Act was made in different years and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter XIV-B unless certain incriminating documents were found during the course of search suggesting that the claim of the assessee in respect of deduction under s. 80-IA of the Act in those years are false. The reliance was placed on the decisions reported in 67 ITD 119 (sic), CIT vs. Vikram Doshi Anr. (2002) 256 ITR 129 (Bom), Sunder Agencies vs. Dy. CIT (1997) 59 TTJ (Mumbai) 610 : (1997) 63 ITD 245 (Mumbai), Parakh Foods Ltd. vs. Dy. CIT (1998) 64 ITD 396 (Pune), Ms. Pooja Bhati vs. Asstt. CIT (2000) 66 TTJ (Mumbai) 817 : (2000) 73 ITD 205 (Mumbai), Jaya S. Shetty vs. Asstt. CIT (1999) 64 TTJ (Mumbai) 551 : (1999) 69 ITD 336 (Mumbai) and CIT vs. Dr. M.K.E. Menon (2001) 168 CTR (Bom) 184 : (2001) 112 Taxman 96 (Bom). 4. It was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITO in issuing notice under s. 158BC of the Act, we do not find any substance in the submissions of the learned counsel. Sec. 158 BC of the Act has used the word "AO". This section requires an AO to issue notice to the searched person requiring him to furnish the return of undisclosed income. Sec. 158BG of the Act talks of an authority who will pass the assessment order. This section prescribes that an assessment order would not be passed by an officer who was below the rank of Asstt. CIT. In other words, the notice under s. 158BC of the Act for filing the return of undisclosed income could be issued by an officer below the rank of Asstt. CIT but the assessment under Chapter XIV-B has to be made by an officer not below the rank of Asstt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he head office by the general manager, Mr. Rana Krishnan as he could not be able to explain the entries properly. Subsequently, these papers were marked as Annexes. A-1, A-2 and A-3 seized from Worli Office, i.e., head office on 6th Jan., 2000". 11. Again in para 5.3 of his order, the AO has observed as under: "5.3 The facts reveal otherwise. During the course of survey, the statement of Mr. B.K. Sharma, slitting supervisor of Silvasa Plant, was recorded on 23rd Dec., 1999. When he was asked to briefly tell the changes that had taken place in the company, he stated "the name was changed from Shiraj Colour Lab. (P) Ltd. to Shiraj Photo Film Ltd. and then to GMS Technology Ltd. Firstly, all operations were carried out from a Gala which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the evidence found during the search or requisition under s. 133A, the undisclosed income could be computed on the basis of such documents/information also. From the order of the AO, nothing comes out as to whether the information/documents found during survey were relatable to any evidence found during the course of search and seizure operation pertaining to the claim under s. 80-IA of the Act or not. If it was so then certainly the addition could be made. but if no material was found during the search and seizure operation relating to claim under s. 80-IA and certain material/information was found only during survey under s. 133A, such material cannot be used for computing undisclosed income under Chapter XIV-B of the Act. We, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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