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TMI Blog2010 (11) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be necessarily taken as a notice issued under section 158BC read with section 158BD, and not an independent notice under section 158BD as held by the Tribunal - Annexure D notice was issued under section 158BC because what is called for is return in Form 2B, which is called for only for the purpose of making block assessment under section 158BC, and section 158BD is also mentioned in the notice - It is nothing but a combined notice issued under section 158BC read with section 158BD and the findings of the Tribunal to the contrary is absolutely untenable - The question referred in favour of the Revenue and against the assessee - These appeals are allowed vacating the orders of the Tribunal and by restoring both the appeals filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 158BD based on the evidence gathered during the search conducted in the premises of one Mr. Prasad, a partner of the firm, in other words a member of the AOP. The search in the premises of Mr. Prasad yielded materials about the income of the respondent assessee, which is an AOP, in which the searched person is a member. Therefore, Annexure D notice produced in ITA No. 146/2009 was issued to the respondent assessee under section 158BD of the Income-ax Act. Pursuant to the notice, the assessee filed return declaring an undisclosed income of Rs. 5,30,000. After verifying the return and evidence, the Assessing Officer issued pre-assessment notice under section 158BC read with section 158BD and completed the assessment in the name of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the search, proved receipt of income by the respondent AOP from the abkari business carried on by them during the block period. Consequently Annexure D notice was issued to the respondent assessee under section 158BD of the Income-tax Act. Since validity of this notice is the crux of the issue in these appeals, we have thoroughly examined the contents of the said notice. What is seen in Annexure D notice is that it is a notice printed requiring the assessee to file return in form 2B for the purpose of block assessment under section 158BC of the Act. In fact, while issuing the printed notice, the Officer has corrected section 158BC to section 158BD both in the heading and in the operative portion, but the return called for is in Form 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said section because it only gives jurisdiction to the Assessing Officer to assess a person other than the searched person based on materials gathered during search. What is stated in section 158BD is that when any evidence is collected about income earned by a person other than the person searched under section 132, the Officer who conducted the search shall hand over those materials and evidence to the Assessing Officer having jurisdiction over such other person to be proceeded for assessment, and once the materials are handed over, the Assessing Officer having jurisdiction over the person to be assessed should issue notice and make assessment under section 158BC. In other words, the procedure for assessment of a person other than th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... association or body of individuals, to the principal officer or any member thereof;" "292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act." 6. What is clear from the above provisions is that notice should be issued in the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our view, the notice served on the assessee has to be necessarily taken as a notice issued under section 158BC read with section 158BD, and not an independent notice under section 158BD as held by the Tribunal. As already found by us the assessee rightly understood the notice as one issued under section 158BD read with section 158BC and in fact the assessee correctly responded by filing return in Form 2B. The Tribunal misdirected themselves to reach the wrong conclusion, because they have not cared to go through the contents of the notice and to find out under what provision the notice is issued. So much so, we hold that the finding of the Tribunal that the notice is one issued under section 158BD alone is incorrect and unsustainable. O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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