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TMI Blog2011 (5) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding as the satisfaction has to be recorded only by the Assessing Officer making the block assessment. - In view of the binding decision of the Delhi Special Bench of the Tribunal in Manoj Aggarwal v. Dy. CIT (2008 -TMI - 63312 - ITAT DELHI-A) and as the Assessing Officer has not recorded the satisfaction for issue of notice under section 158BD, prior to completion of assessment, the issue of notice under section 158BD is bad in law - Decided in favor of assessee. - IT(SS) NO. 33 (MUM.) OF 2007 - - - Dated:- 20-5-2011 - SHRI N.V. VASUDEVAN, AND SHRI J. SUDHAKAR REDDY, JJ Represented By: Shri G.P. Mehta for the Appellant. Shri Mrs. Kusum Ingale for the Respondent. ORDER J. Sudhakar Reddy, Accountant Member- Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The Commissioner, in a review note dated December 8, 2003, stated as follows : "Review remarks of the Commissioner of Income-tax : This is a case where the assessment has been concluded under section 158BC consequent upon a search carried out in the premises of the group on August 4, 2000. It is seen that a notice under section 158BC has been routinely issued without bothering to verify whether any warrant of authorisation was issued in respect of the assessee. The assessment itself has been concluded on income of Rs. 8.20 lakhs, but on appeal, the Commissioner of Income-tax (Appeals) has annulled the assessment on the ground that the case did not fall under the provisions of section 158BC since no warrant was issued in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Jayant S. Jain (Hindu undivided family) for issuance of notice under section 158BD, were not recorded prior to the completion of the assessment of the case of Jayant S. Jain (individual). From the review of the assessment order dated December 8, 2003, it is clear that the satisfaction note, if any, would have been prepared much after the date of completion of assessment in the case of Jayant S. Jain (individual). Learned counsel for the assessee points out that the issue is no more res integra. In view of the decision of the Special Bench of the Tribunal in the case of Manoj Aggarwal v. Dy. CIT [2008] 113 ITD 377 (Delhi)[SB], and that the notice issued under section 158BD is bad in law and consequently, the assessment is bad in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then he shall hand over the seized material so as to enable the second Assessing Officer to make a block assessment in a similar manner and that is not possible if the satisfaction is not recorded. And this can be recorded only and only in the course of section 158BC proceeding and nowhere else. It is the Assessing Officer assessing the person searched who goes through the seized material and comes to a decision as to whether there is any undisclosed income unearthed as a result of search, if so its nature and to whom it belongs. If the said undisclosed income belongs to the person searched that is the end of the matter. If, on the other hand, the material examined shows that the undisclosed income pertains to some other person he has to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of the said proceeding only. If he finds that any or all of such income belongs to a person not searched, then he has to record such finding in this behalf and take follow-up action as envisaged in section 158BD which again has to be only in the course of section 158BC proceeding and hence if no such satisfaction is recorded in the course of section 158BC proceeding, then assumption of jurisdiction under section 158BD is not possible. In the circumstance, the absence of the words 'in the course of the proceeding in section 158BD is not material to the issue in the context of the said section itself.-Amity Hotels P. Ltd. v. CIT [2005] 272 ITR 75 (Delhi); [2004] 192 CTR (Delhi) 607, and Priya Blue Industries (P.) Ltd. v. Joint C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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