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TMI Blog2009 (8) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... JJ. Krishna Nandan Prasad and K. C. K Sinha for the appellant. Harshwardhan Prasad and Rishi Raj Sinha for the respondents. JUDGMENT The assessee has preferred this appeal under the provisions of section 260A of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), challenging the order dated November 7, 2001, passed by the Income-tax Appellate Tribunal, Patna Bench, Patna, in I. T. (55) A. No.106/(Pat)/1997, for the block period 1986-87 to 1996-97, affirming the order dated November 28, 1997, passed by the learned Assistant Commissioner of Income-tax, Patna being the assessing authority. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. The appellant claims to be an employee in the Department of Prisons of the undivided State of Bihar. Her husband, Dr. Shashi Kumar Singh, was an employee in the Department of Animal Husbandry, of the undivided State of Bihar. In or around 1995 or 1996, a major scam in the Department of Animal Husbandry was busted showing involvement of a large number of Government servants. One Dr. Shyam Bihari Sinha, a resident of Ranchi and senior functionary of the Department of Animal Husba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come and were assessed together as per the prescribed procedure. The learned Assessing Officer has also noted that the authorities under the Act had prohibited the appellant from operating a particular bank account notwithstanding which it was operated on two occasions which was also added up to the undisclosed income and were taxed in accordance with law. The appellant challenged the order dated November 28, 1997, passed by the learned Assistant Commissioner of Income-tax, by preferring appeal before the Income-tax Appellate Tribunal, Patna Bench, Patna, and was registered as I. T. (SS) A. No. l06/(Pat)/1997 for the block period 1986-87 to 1996-97 The learned Tribunal allowed the appeal in part, but dismissed it substantially by order dated November 7, 2001 and impugned herein. 5. While assailing the validity of the impugned order, learned counsel for the appellant submits that the search and seizure does not satisfy the mandatory requirement of section 132 of the Act and, therefore, further action is bad in law. He has in the same vein submitted that there was no objective material in terms of section 132 of the Act to ensure satisfaction of the authorities to conduct the sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Buxi Compound, Ranchi, in the presence of the appellant and her husband and a large number of materials were seized during the course of the search. He next submits that law is well settled in India that an illegal or irregular search cannot by itself invalidate the subsequent action. The primary question in his submission, therefore, is the validity of the subsequent action. He relies on the judgment of the Supreme Court in the case of Seth Brothers [1969] 74 ITR 836. He also invokes the provisions of section 158BH of the Act which is in the nature of a saving clause. He further submits that more than adequate opportunity was afforded to the appellant before the learned Assessing Officer as well as the learned Tribunal, though the appellant as well as her husband had failed to extend adequate co-operation in concluding the assessment proceedings. Notices as per the prescribed procedure, as well as copies of the valuation report of the house in question, as well as documents were provided to the appellant to put up her defence. He submits that section 158B (i) (sic) permits taking into account a large number of materials for the purpose of block assessment. He severely critici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but a copy of the same is not available. We consider it to be an irregularity fit to be condoned because of substantial compliance of section 132 of the Act. The judgment of the Supreme Court in the case of Seth Brothers [1969] 74 ITR 836 is illuminating and supports our view. It has been observed therein that if the conditions for the exercise of the power are not satisfied the proceeding is liable to be quashed. But where power is exercised bona fide, and in furtherance of the statutory duties of the tax officers, any error of judgment on the part of the officers will not vitiate the exercise of the power. Where the Commissioner entertains the requisite belief and for reasons recorded by him authorises a designated officer to enter and search the premises for books account and documents relevant to or useful for any proceeding under the Act, the court, in a petition by an aggrieved person, cannot be asked to substitute its own opinion whether an order authorising search should have been issued. Any irregularity in the course of entry, search and seizure committed by an officer acting in pursuance of the authorisation will not be sufficient to vitiate the action taken provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Tribunal and are substantially issues of fact. The plea taken by the appellant that the couple had accompanied the said Dr. Shyam Bihari Sinha to Australia for the latter's treatment and the expenses were paid by him was an issue of fact, and has been rejected by the learned Tribunal. We entirely agree with this part of the findings recorded by the Tribunal. In other words, the learned Tribunal came to the conclusion that in the absence of any material to support the fact that the journey expenses of the couple were borne by Dr. Shyam Bihari Sinha, the same has to be taken to be an expense made by the appellant and has been taken to constitute "undisclosed income". We entirely agree with the same. 15. In the result, we do not find any merit in this appeal. In so far as the first question is concerned, we are convinced that the three ingredients engrafted in section 132 of the Act which constitute a valid search are satisfied in the present case, is answered against the assessee, and in favour of the Revenue. As to the second question, materials were indeed collected during the course of the search which led to the order of assessment. The second substantial question o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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