9911796707
TMI Blog2012 (9) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... , JJ. Appellant by : Shri B.L.Yadav, Sr.D.R. Respondent by : Shri J.P.Shah ORDER PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER : This is an appeal filed by the Revenue arising from the order of Learned CIT(Appeals)-II, Surat dated 27.11.2009 and the Revenue s only ground of appeal is as follows:- 1) On the facts and circumstance of the case and in law, the Ld.CIT(A) has erred in deleting the addition made by the A.O. of Rs.3,91,385 on account of unaccounted on-money paid by the assessee for purchase of flat at Chandan Park Society from Ohm Organizers and Ohm Developers holding that there was inordinate delay in inflation of action u/s.158BD and thereby the proceedings initiated u/s.158BD is invalid. 2. The issue raised by the Revenue has already been decided by Respected Benches in number of appeals, therefore, we have decided to proceed, after hearing both the parties. 3. Facts in brief as emerged from the corresponding assessment order passed u/s.158BC r.w.s.158BD of the I.T. Act, 1961 dated 27/01/2009 are that the Assessing Officer has noted that a search u/s.132 was carried out at the business premise of M/s.Ohm Developers, Surat on 29/10/1999. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts 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 developed by M/s.Ohm Developers and M/s.Ohm Organisers, seem to be continuing without any sign of finality. 6.1. It must be reiterated that the search in the case of M/s.Ohm Developers, u/s.132 of the IT Act was conducted on 29.10.1999 which means that the investment in the properties developed by M/s.Ohm Developers was made earlier to the said date. In course of the block assessment proceedings, the AO of M/s.Ohm Developers sought details and explanations u/s.133(6) from all the investors. The block assessment in the case of M/s.Ohm Developers was completed on 30-11-2011. The proceedings u/s.158BD in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dubhai Vasanji Desai Ors. Vs. Dy.CIT (236 ITR 73)(Guj.) 4.1. 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 hereinbelow reproduce the relevant paragraphs from the order of DCIT vs. Shri Shailesh M.Desai [supra] as under:- 6. On consideration of the rival submissions, we are of the view that the issue is squarely covered in favour of the assessee by the order of ITAT, Ahmedabad Bench "D" (Camp at Surat) in the case of Vimal Vadilal Shah Ors (supra) in which the Tribunal at paragraph 11 of the order held as under:- "11. In E.J. Ulahanna v. ACIT in ITA No.19/Ahd/2007 pronounced on 18-03-2009, following the decision of Special Bench in the case of Manoj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the proceedings and not during the course of assessment proceedings. This plea was upheld by the CIT(A) following earlier judgment fo the Tribunal in Manoj Aggarwal v. DCIT (2008) 113 KTD 377 (Del)(SB). The Tribunal affirmed the said view. 3. We have heard learned counsel for the revenue. 4. An identical matter was considered by this Court in order dated 207.2010 in ITA No.591 of 2009, Commissioner of Income-tax-l, Ludhiana v. Mridula, Prop. M/s Dhruv Fabrics, Ludhiana and it was observed: "the act no where specifically prescribes any time ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
