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TMI Blog2010 (10) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... ount added and considered in the hands of the appellant is highly unjustified, illegal and without jurisdiction. 4. That in any view of the matter the authorization under section 132 of the Act was issued on 3-5-1998 by the learned Commissioner of Income-tax, simply on the basis of police information, therefore there was no reason or satisfaction recorded by the department, hence the Commissioner of Income-tax had no jurisdiction to issue warrant of authorisation. 5. That in any view of the matter the entire procedure adopted by the Assessing Officer for framing the order is illegal, invalid and the findings and observations in the orders of the two lower authorities are contrary to the actual facts of the case. 6. That in any view of the matter in the course of hearing of appeal series of decisions were brought to the knowledge of the learned Commissioner of Income-tax (Appeals), but those decisions were altogether ignored specially when certain decisions are of the Hon'ble Jurisdictional High Court and Apex Court but no weightage was given by the first appellate authority hence such action of the learned Commissioner of Income-tax (Appeals) is illegal and incorrect. 7. That i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found from the possession of the said three persons out of which a sum of Rs. 5,45,000 was with Shri Vijay Kumar Soni, Rs. 6,00,000 with Shri Phool Raj Singh and Rs. 5,55,000 was with Shri Mahesh Kumar Khandelwal. In reply to the query by the Police, all the three persons stated that they have got the money from Guddu i.e. Shri Anil Kumar Chaddha, assessee. The Assessing Officer did not believe the concocted story made by Shri Anil Kumar Chaddha, the assessee, that this money belongs to a firm M/s Chaddha & Others and issued a notice under section 158BC in the name of the assessee and taxed the amount of Rs. 17,00,000 seized from those three persons in the hands of the assessee as his undisclosed income alongwith the income of Rs. 1,11,700 disclosed by the assessee in the return. Accordingly, the aggregate of undisclosed income of Rs. 18,11,700 was taxed in the hands of the assessee. 3. The assessee challenged the proceedings before the learned CIT(A) by stating that it was not based on any material or valid information. The authorization under section 132 of the Act was issued on 03-5-1998 by the ld. CIT simply on the basis of police information. The reliance was placed on the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 158BC or under section 158BD, both the notices were the same and the assessment has to be made under section 158BC in whose name seizure was made. Now the assessee is in appeal. 5. The learned counsel for the assessee reiterated the submissions made before the authorities below and further submitted that there was no search in the hands of the assessee and even no warrant of authorisation was issued in the assessee's name. A reference was made to page No. 4 of the assessee's compilation which is the copy of search warrant and had been obtained by the assessee by filing an application under the RTI Act with ACIT, Circle-Allahabad. The learned counsel for the assessee further submitted that no seizure was made in the assessee's hands, therefore, the notice under section 158BC was invalid and that no notice under section 158BD was issued to the assessee. The reliance was placed on the following case laws: (1) CIT v. Ms. Pushpa Rani [2004] 136 Taxman 627 (Delhi) (2) CIT v. Opal Construction [2004] 136 Taxman 628 (All.) (3) CIT v. Ms. Rohini S. Walia [2007] 289 ITR 328 (Delhi) (4) CIT v. Don Vosco Card Centre [2007] 289 ITR 329 (Ker.) (5) Raghu Raj P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the 30th day of June, 1995, but before the 1st day of January, 1997, serve a notice to such person requiring him to furnish within such time not being less than fifteen days; (ii) in respect of search initiated or books of account or other documents or any assets requisitioned on or after the 1st day of January, 1997, serve a notice to such person requiring him to furnish within such time not being less than fifteen days but not more than forty-five days, as may be specified in the notice a return in the prescribed form and verified in the same manner as a return under clause (i) of sub-section (1) of section 142, setting forth his total income including the undisclosed income for the block period: Provided that no notice under section 148 is required to be issued for the purpose of proceeding under this Chapter: Provided further that a person who has furnished a return under this clause shall not be entitled to file a revised return;] (b) the Assessing Officer shall proceed to determine the undisclosed income of the block period in the manner laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd object of such a provision subject to its applicability and it is used having relation to the context only." 7.2 In the instant case also, the provisions of section 158BC were not applicable in the case of the assessee whereas the provisions of section 158BD were applicable. We, therefore, are of the view that the learned CIT(A) was not justified in holding that there is no difference in the notice which is issued under section 158BC or 158BD and that both the notices are same and assessment has to be made under section 158BC in whose name seizure is made. As we have already pointed out that in the hands of the assessee no seizure was made and no search took place, therefore, the provisions of section 158BC were not applicable in assessee's case. The Hon'ble Supreme Court in the case of Manish Maheshwari v. ACIT [2007] 289 ITR 341 has held (head-note) as under : "Before the provisions of section 158BD of the I.T. Act, 1961, are invoked against a person other than the person whose premises have been searched under section 132 or documents and other assets have been requisitioned under section 132A, the conditions precedent have to be satisfied." 7.3 In the present case, althou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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