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TMI Blog2014 (2) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... aking block assessment, the reference to Section 143(3) notice read with proceedings under Section 158BC does not make the assessment as the one not falling under Section 158BD – thus, as per the procedure laid down u/s 158BC there is no confusion in the mind of the Officer as to the provision it is proceeded against nor in the mind of the assessee that the assessment was made consequent on the seizure of materials in the course of search operation in the premises – the Tribunal had already remitted the matter back to the AO – thus, the AO id directed to expedite the matter without any further delay – Decided against Assessee. - Tax Case (Appeal) No.2412 of 2006 & M.P.No.1 of 2006 - - - Dated:- 10-2-2014 - Chitra Venkataraman And T. S. Sivagnanam,JJ. For the Appellant : Mr. T. C. A. Ramanujam For the Respondent : Mr. T. R. Senthil Kumar Mr. A. P. Srinivas Standing counsel for Income Tax JUDGMENT (Judgment of the Court was delivered by Chitra Venkataraman,J.) The assessee herein carries on business as a proprietor in the name and style of M/s.Rekha Silk Industries. It is seen from the facts narrated in the orders of the Assessing Officer that there was a search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order was thus finalised and a demand was made. Aggrieved by this, the assessee went on appeal before the Income Tax Appellate Tribunal as per the provisions as it stood then. 4. We find from the records placed before this Court that the assessment challenged in the appeal before the Income Tax Appellate Tribunal was considered by the Income Tax Appellate Tribunal under a common order pertaining to several of the family members' appeals also. The Tribunal passed the order on 12.4.1999 following the order passed in other group case and held that when there was no search in the premises of the assessee, the question of making an assessment under Section 158BC of the Income Tax Act did not arise. Thus the Tribunal allowed the appeal and set aside the assessment. Aggrieved by this, the Revenue came on appeal before this Court in T.C.(A)No.241 of 2000. By order dated 09.12.2003, this Court considered the appeal of the Revenue as against the present assessee along with another assessee of the group case and set aside the order of the Tribunal and remanded the matter back to the Tribunal for fresh consideration. This Court pointed out to the order of the Tribunal placing reliance on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law in not following its own earlier orders in 41 other cases arising from the same search on the same day when the facts and questions of law were identical? 3. Whether the Tribunal is justified in remitting the matter to the assessing officer ignoring the orders of the High Court when detailed submissions were made to prove that there was no material to indicate undisclosed income before the Tribunal? 4. Whether the Tribunal was justified in overlooking the fact that the Assessing Officer never recorded any satisfaction about the books of accounts and other documents indicating undisclosed income of the appellant petitioner when there is no search warrant against him? 5. Whether in the facts and circumstances of the case the order of the Hon'ble Tribunal is sustainable in law in as much as the Tribunal overlooked the materials placed before it in support of the contention that the additions are unwarranted, without referring to any of those materials? 6. Whether the Tribunal was justified in law in ignoring the fact that the department itself has accepted the decision of the Hon'ble Tribunal on rejection of reference application filed u/s.256(1) of the Act in 41 other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s's case residing in the same address as that of the assessee. The assessment, in effect, is only under Section 158BD of the Income Tax Act; consequently, no issue can be raised by the assessee about the non-service of search warrant. He also drew our attention to the grounds raised in the tax case in the earlier round of litigation that there were individual documents in the form of books and materials pertaining to the assessee seized in the course of search operation on 31.8.1995 in the premises of Shri. Sridhar Sarada and Shri. Ramachandran Sarada at 64, Godown Street, Madras-1, which led to the assessment on the assessee under Section 158BD of the Income Tax Act. 11. Heard learned counsel appearing for the assessee, learned Standing Counsel appearing for the Revenue and perused the materials placed before this Court. 12. Since the issue as to whether there was a search in the premises of the assessee and the search warrant was made in the name of the assessee were raised and were very much in dispute, to ascertain the facts, we called for the records from the Department and accordingly, learned Standing Counsel appearing for the Revenue has produced the assessment records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 158BC was specifically inserted under Section 158BD under Finance Act, 2002, with effect from 01.06.2002. But even without this insertion, it is clear that if the Officer has to proceed for block assessment, the only chapter that would apply in a given set of circumstances for block assessment is Chapter XIV B. Thus, as per the procedure laid down under Section 158BC there is no confusion in the mind of the Officer as to the provision it is proceeded against nor in the mind of the assessee that the assessment was made consequent on the seizure of materials in the course of search operation in the premises of Shri.Sridhar Sarada and Shri.Ramachandran Sarada. 15. In the light of the above-said fact and as evident from the documents available in the assessment records as well as in the assessment order itself, we have no hesitation in rejecting the contention made by the assessee that the block assessment fails in this case for want of jurisdiction. 16. As regards the reliance placed on the decision reported in (2007) 289 ITR 341(SC) (Manish Maheswari V. Asst. Commissioner of Income tax and another), a reading of the judgment of the Apex Court shows that a search operation was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 158BD and the said notice did not record any satisfaction on the part of the Assessing Officer. Documents and other assets recovered during search had not been handed over to the Assessing Officer having jurisdiction in the matter and no proceedings were initiated under Section 158BC. Thus, there was a patent non-application of mind. Noting the facts, the Apex Court pointed out that the Assessing Officer had not recorded his satisfaction, which is mandatory; nor had he transferred the case to the Assessing Officer having jurisdiction over the matter. Thus, the Apex Court held that the assessment made being devoid of jurisdiction, could not be sustained. 19. The judgment of the Apex Court, rested on facts narrated above, has no relevance to the facts herein. As already pointed out in the preceding paragraphs, notice was issued to the assessee consequent on the seizure of materials indicating the assessee's transaction in shares. The assessee had responded to the notice and accordingly, by entering into correspondence even as early as 23.12.1995 filed its return, participated in the assessment proceedings and suffered an assessment. Thus, in the background of the facts n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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