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TMI Blog2012 (9) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was inordinate delay in initiating the proceedings u/s.158BD and therefore the block assessment framed is invalid. [2] On the facts and in the circumstances of the case as well as law on the subject, the assessment framed u/s.158BC r.w.s. 158BD of the Act, is bad-in-law and without jurisdiction on the ground that the Assessing Officer of the search party failed to record his satisfaction as laid down u/s.158BD. [3] The statement of one of the partners of the search party viz. Ohm Organizers recorded u/s.132[4] is not a 'seized material' and therefore the action initiated u/s.158BD of the Act, considering it as seized material is bad-in-law and without jurisdiction. [4] On the facts and in the circumstances of the case as well as law on the subject, the learned A.O. erred in making addition of Rs.5,06,000/- without any cogent evidence and without considering the submissions favorably. Yours respondent further reserves her right to add, alter or to amend any of the aforesaid grounds at the time of hearing of an appeal. Your respondent prays that looking to the facts and circumstances of the case, the order of the CIT(A)-II, Surat may please be confirmed and the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the first appellate authority, the ld.CIT(A) held as under:- "Decision 6. I have carefully considered both the positions. In all the cases of the investors with M/s.Ohm Developers and Ohm Organisers whose appeals have been decided by me so far, I have taken the view that there is o time limit prescribed for proceedings to be initiated u/s.158BD of the IT Act. While taking such a view, I have respectfully disagreed with the view taken by the Special Bench of the ITAT, Delhi in the case of Manoj Aggarwal (supra) on the basis of the long established view expressed by eminent jurists and several Courts including the Hon'ble Supreme Court, and recently reconfirmed once again by the Hon'ble Supreme Court in the case of UOI and others v/s.Dharmendra Textile Processors & Ors. 2008 306 ITR 277, that the ITAT is not competent to create law or introduce any fictional amendment to the statute. Hence, the proceedings initiated u/s.158BD cannot be nullified on the basis of the decision in the case of Manoj Aggarwal (supra). However, I am now forced to take a different view. This is because, I find that the proceedings u/s.158BD against the investors in different projects promoted and develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (in ITSS A No.81/Ahd/2007) block period 1.4.89 to 29.10.99 ITAT "D" Bench Ahmedabad order in the case of Amitbhai B.Sojitra vs. ACIT order dated 7.1.2008 4. IT(SS)A No.95 & 96/Ahd/2007 Block assessment period from 30.10.89 to 29.10.99 ITAT "D" Bench Ahmedbad order in the case of Jayesh T.Desai vs. ACIT order dated 28.05.2010 5. IT(SS)A No.66/Ahd/2007 & 72/Ahd/2007 block period Assessment Year 90-91 to 99-2000 & upto 29.10.99 ITAT "D" Bench Ahmedabad order in the case of Shailesh M.Desai vs. DCIT order dated 15.10.2010 6.Gujarat High Court Decision Khandubhai Vasanji Desai & Ors. Vs. Dy.CIT (236 ITR 73)(Guj.) 5.1. All these cases are covered by search operation which was conducted on M/s.Ohm Organizers. In the above cited orders, the Tribunal has noted that search in the case of Ohm Developers was carried out on 29.10.1999. The Tribunal has further noted that the assessment in the case of Ohm Developers was completed on 30.11.2001. Therefore, following Manish Maheshwari 289 ITR 341 (SC)[supra], the several Respected Co-ordinate Benches have unanimously held that the belated issuance of notice u/s.158BD was barred by limitation. Out of the list of the orders reproduced above, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal, Chandigarh Bench (B), Chandigarh (Hereinafter referred to as "the Tribunal") passed in I.T.(SS)A. No19/CHAND/2009 dated 127.8.2009 for the block period 01.04..1996 to 05.02.2003, proposing to raise the following substantial question of law:- "Whether on the facts and in law, the Hon'ble Income Tax Appellate Tribunal was justified in holding the recording of satisfaction u/s 158BD by the Assessing Officer of the person searched and consequence issuance and service of notice u/s 158BDE on 2.12.2006 was belated and beyond the period prescribed by law when the section 158 BD read with section 158BE does not specify that satisfaction has to be recorded by the Assessing Officer before completion of assessment u/s 158BC of the Income Tax Act, 1961 ?" 2 A search was conducted on 5.2.2003 at the residence of one S.K. Bhatia, and from the seized documents and after finalizing block assessment against the searched person on 28.2.2005, proceedings were also taken against the respondent after recording satisfaction on 31.3.2006. Notice under Section 158BD was issued on 2.12.2006 which was contested by the respondent on the ground that the satisfaction note itself was after conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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