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TMI Blog2014 (4) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/s.158BD of the Income-Tax Act-1961 is clearly invalid and void ab initio. 2. That, on the facts, it ought to have been held that learned Assessing Officer had not given sufficient opportunity, nor provided copies of seized materials, nor opportunity of cross examination of concerned persons and hence entire assessment is invalid. 3. That, the learned CIT(A)-II had grievously erred in law and on facts in confirming the addition of Rs.2,25,750/- as unexplained investment u/s.69 of the Income-tax Act-1961. 2.1. The facts in IT(ss)A No.34/Ahd/2009 are taken up as lead case. Briefly stated facts of the case are that a search action u/s.132 of the Act was conducted in the case of one Shri Shashikant V.Tamakuwala on 27/04/2000. During the course of search, various documents were found in respect of sale of plot. The AO issued notice u/s.158BD r.w.s158BC of the Act on 29/03/2006 and served upon the assessee on 20/04/2006 requiring the assessee to file the block return of income within thirty days of the service of notice. The AO framed assessment u/s.158BD of the Act on 30/04/2008, thereby addition of Rs.2,25,750/- was made as unexplained investment. Agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Asst.CIT, Circle-4, Surat addressed to Jt.CIT, Range-4, Surat is enclosed. The ld.counsel for the assessee submitted that this is the letter of the AO of the searched party who has stated that a plot of land is purchased in the name of company and request was made to direct the concerned AO to take action u/s.158BD of the Act. He submitted that there is nothing on record suggesting that the AO of the searched party has recorded satisfaction of the appellant. Therefore, the action of the AO to frame assessment u/s.158BD of the Act in respect of the appellant is illegal and bad in law. He submitted that in this case, search operation was carried out on 27/04/2000 and notice was issued u/s.158BD of the Act on 29/03/2006 and served upon the assessee on 20/04/2006 nerely after six years from the date of search. He submitted that on this ground also, the action of the authorities below cannot be sustained in view of the binding precedent of the Special Bench of Hon'ble Delhi Tribunal rendered in the case of Manoj Aggarwal vs. DCIT reported at (2008) 113 ITD 337 (Del.)(SB) as well as the judgement of Hon'ble Jurisdictional High Court rendered in the case of Chandrakantbhai Amratlal Thakk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the case. The ld.CIT(A) has not given any finding on the submission of the assessee that satisfaction was recorded by the AO of the searched party in respect of the company but not in respect of the appellant. This kind of casual approach of ld.CIT(A) is highly deprecated. He ought to have refer to the material available on record. From the records submitted by the Revenue, it is evident that initially the satisfaction was recorded by the AO of the searched party in respect of the company, namely, M/s.Sarkar Plywood (P) Ltd. The proceedings u/s.158BD r.w.s.158BC of the Act were issued and dropped by the AO of the said company on the basis that when the plot was purchased, the company had not come into existence. The AO of the company namely, M/s.Sarkar Plywood (P) Ltd. through his letter dated 20/09/2005 addressed to the Addl.CIT, Range-2 Surat, requested that S/Shri Anees F.Sarkar & Iqbal F.Sarkar are assessed to tax in Range- 2, Surat and in view of the facts mentioned in para-3 of his letter, also requested to direct the ACIT, Cir-2, Surat to take necessary action u/s.158BD r.w.s.158BC of the Act in the case of above named assessees. This fact is not controverted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 132A, as the case may be, was executed and in respect of assessment made u/s.158BD of the Act, two years from the end of the month in which the notice under this Chapter was served on such other person. In respect of search initiated or books of account or other documents or any other assets are requisitioned on or after the 1st day of January, 1997. However, there is no limitation for issuing a notice u/s.158BD is provided under the Act, but this cannot be construed as the proceedings can be initiated even after lapse of many years or after indefinite period. The Hon'ble Delhi Tribunal (Special Bench) in the case of Manoj Aggarwal vs. DCIT(supra) has decided this issue, by observing as under:- "116. A view is expressed that wherever a time-limit is intended, the Parliament has provided for the same and in the absence of a specific provision made in this respect it has to be assumed that there is no time-limit intended in law. It has to be remembered that the mater relates to fixing huge financial and other civil liability on the person affected and it has been repeatedly held that there must be a finality to any proceeding under the Act and that a concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal which could support its finding. What the manager of the bank wrote in his letters could not possibly be based on his personal knowledge but was based on here say. The revenue authorities ought to have called upon the manager to produce the documents and papers on the basis of which he made the statement and confronted the assessee with those documents and papers. No explanation has been furnished by the revenue as to what happened when the manager appeared in obedience to the summons and what statement he made." 4.2. After considering all the aspects, we find merits in the contention of the ld.counsel for the assessee and the grounds raised by the assessee are hereby allowed. 5. In the result, assessee's appeal in IT(ss)A No.34/Ahd/2009 for the block period 01/04/1990 to 27/04/2000 is allowed. 6. Now, we take up the assessee's appeal (in the case of Mr.Iqbal Firoz Sarkar), i.e. IT(ss)A No.35/Ahd/2009 for block period 01/04/1990 to 27/04/2000. The Assessee has raised the following common grounds of appeal:- 1. That the learned CIT (Appeal)-II Surat has grievously erred in law and on facts in holding that the assessment is valid, whereas, in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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