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TMI Blog2012 (6) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... cept the case of the petitioner that in finalising the assessment under section 144 of the Act, natural justice was violated. In this case, since proceedings for assessment were initiated following a search under section 132, the special procedure as provided in Chapter XTV-B has to be followed. In such a case, the assessment to be completed has to be for the block period as defined in section 158B(a) and the block period includes the period upto the date of commencement of search, in addition to the six assessment years preceding the previous year in which the search was conducted. Insofar as this case is concerned, apart from contending that the assessment under section 144 is beyond the six years, petitioner does not have a case that the assessment for 2009-2010 has been completed violating section 158B(a) of the Act. Therefore, Writ Petn. where Ext. P17 is challenged has to be dismissed. - Writ Petn. Nos. 2881, 2945, 2948, 2952 to 2954 & 2956 of 2011 - - - Dated:- 13-6-2012 - ANTONY DOMINIC, J. A. Abdul Kharim, Liju V. Stephen, Eby Augustine, Indu Susan Jacob for the Petitioner. P. K. R. Menon, Jose Joseph for the Respondent ORDER ANTONY DOMINIC, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended to complete die assessment as provided under section 144 of die Act. Accordingly, petitioner was called upon to appear on 3.12.2010 and to show cause why die assessment should not be completed to die best of his judgment and that his non-appearance will result in ex parte assessment. 5. According to the petitioner, on receipt of this notice, an employee of Moidu's Medicare (P) Ltd. was deputed to gather the details and that die respondent declined to entertain him standing that he was not an Authorised Representative of the petitioner. Petitioner further states that thereupon he personally appeared before die respondent, when he reiterated his request for furnishing the documents and materials on the basis of which the proceedings were initiated against him and that in spite of all these, nothing was made available. Petitioner says that the respondent had informed him diat proceedings were sought to be initiated against him under section 153A r/w section 153C of the Act and that thereupon he informed the respondent that except Ext. P10 letter dated 25.11.2010, he had not received any notice in die matter. It is stated that thereupon, he was shown copy of the notice dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee did not respond to the notice and therefore, notices under section 142(1) of the Act were issued to him. These notices were accepted by the petitioner's wife, who has also acknowledged the notices. Copies of the notice and its acknowledgement are Exts. R(C) and R(D) respectively. According to the respondent, as in the case of the notices issued under section 153A r/w section 153C of the Act, there was no response to these notices also and that on account of the change in the incumbent assessing officer, the case was again posted to 9.11.2010, when the petitioner filed Ext. R(E) letter, requesting to make available to him the satisfaction note recorded by the assessing officer at Mangalore. 9. According to the respondent, the assessment was to become time- barred on 31st Dec., 2010 and since sufficient time and opportunities have already been given, there was no requirement to wait any further, and as it appeared that the petitioner will not co-operate, it was proposed to complete the assessment to the best of his judgment as provided under section 144 of the Act. Accordingly, Ext. P10 letter dated 25.11.2010 was issued to the petitioner calling for his objections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not my Authorised Representative nor have I authorised him to receive any notice on my behalf. The respondent admits that Sri Nithin Raj has signed it under the seal of National C.T. Scanner Diagnostics Centre and not as my Authorised Representative. I further submit that Nithin Raj is not my accountant as alleged by the respondent. Hence the service on Sri Nithin Raj is not a valid service and such service is not binding on me. I state and submit that the said notice under section 153 was neither given to me nor brought to my notice. Adverting to para 4, the respondent states that the notice under section 142(l) was served on me on 7.09.2010 while simultaneously he states that the notice was accepted by my wife on my behalf. I stoutly deny the allegation that my wife had accepted the notice on my behalf. She is not aware of my financial matters and was never attending to my tax or financial matters. She does not also hold any authorisation from me to receive notices on my behalf. I did not respond to the notices referred to in paras 3 and 4 since these notices were not brought to my notice and I was not aware of the same. Further he also asserted that he appeared before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling for his return. The assessee did not respond to this notice nor did he co-operate in completing the assessment which was therefore completed under section 144. No notice under section 153A was issued for the asst. year. 2009-10. For these reasons the assessee's observation is against facts. 15. Further, insofar as the petitioner's case regarding his address and that in his income-tax records, his address is not his residential address are concerned, para 4 of the statement answers the plea as under : In the opening para the assessee says that he has his office at Moidu's Medicare (P) Ltd. It may please be noted that nowhere does he mention anything about his residential address. He has reiterated that he does not reside at 'Bay Watch', West Hill, Calicut which is the place where he resides. He also forgets that is the sworn statement recorded from him at Mangalore on 15.04.2009 in reply to question No. 1 he has stated as under : 'I am Dr. K.M. Mehaboob, aged about 45 years, s/o Dr. K.M. Moidu and residing at 'Bay Watch', Elathur, Calicut. Elathur and West Hill are nearby places and does not make much difference for a man of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative. Copies of these ITS Data bearing the signature of the assessee's representative to whom the data had been supplied are produced herewith and marked as Ext. R(l). He further states that he is maintaining regular books of accounts but he is silent on the point whether he has been furnishing his IT returns. 20. As far as the plea that before completing the assessment, the petitioner was not given a show-cause notice, the case of the respondent is that no such notice was required to be issued since notice under section 142(1) of the Act had already been issued. 21. Having thus noticed pleadings, I shall proceed to examine the contentions raised by the learned counsel for the petitioner. The first contention to be answered is whether Exts. R(A) and R(C) notices issued under section 153C and 142(1) of the Act, respectively were validly served. Case of the petitioner is that Ext. R(A) notice was served on Sri Nithin Raj and Ext. R(C) notice was served on his wife and that both these persons were not his Authorised Representatives as provided in section 288 of the Act. To substantiate the contention, counsel placed reliance on tire decisions in Fatechand Agarwal vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d having acted upon the notice, he cannot now turnaround and contend that Ext. R(A) notice was not properly served on him. 24. Insofar as Ext. R(C) notice issued under section 142(1) of tire Act Is concerned, admittedly, that notice was acknowledged by the petitioner's wife. Here again, no document is produced by the respondent evidencing that the recipient of the notice is an authorised agent of the petitioner. In this context it is to be noticed that section 282(b) of the Act provides that service of a notice or summons or requisition or order or any other communication may be made by delivery or transmitting a copy to the person concerned in such manner as provided under the CPC for the purposes of service of summons. Order V, r. 15 of tire Code provides that where in any suit the defendant is absent from his residence at the time when the service of summons Is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; or c. served upon him in an improper manner : Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. 26. It was contended that section 292BB was inserted into the Act by Finance Act, 2008 w.e.f. 1.04.2008, and therefore cannot be called in aid to validate the assessments pertaining to the previous years. However, I am unable to agree with tire learned counsel for the petitioner. While it may be true that this section does not have retrospectivity, this section will govern all proceedings initiated subsequent to 1.04.2008, even if such proceedings are in relation to assessment years prior to 1.04.2008. Therefore, the petitioner having admitted service of the summons and appeared before tire respondent in pursuance to Ext. R(F) summons, cannot now contend that tire summons was not duly served on him or that tire service upon him was improper for any reason. This reasoning should apply to the service of Exts. R(A) and R(C) also. 27. Another contention raised by the counsel for the petitioner was that for all purposes under tire Act, the petitioner's address w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153C also, tire requirement of satisfaction of tire assessing officer before handing over tire case to tire assessing officer having jurisdiction over tire other person is incorporated. In support of her contention that the AO should have recorded his satisfaction, learned counsel for tire petitioner relied on the apex Court judgment in Manish Maheshwari vs. Assistant Commissioner of Income Tax Anr.(2007) 289 ITR 341(SC). 29. I have considered this contention also. First of all, the aforesaid provisions of the Act only state that before proceeding any further against any other person, the assessing officer should be satisfied that the undisclosed income or the document unearthed in a search under section 132 is with respect to another person. In other words, it is only tire clerical satisfaction of the assessing officer that is contemplated. It is true that in the judgment relied on, the apex Court has held that the satisfaction of the assessing officer should be recorded and therefore this Court is bound to proceed on that basis. 30. However, insofar as tills case is concerned, even in Ext. R(E) letter, the petitioner did not have a case that the assessing officer did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given by the assessing officer by serving a notice calling upon the assessee to show cause on a date and time to be specified in the notice why tire assessment should not be completed to tire best of his judgment. 32. Although tire section provides for an opportunity of hearing to the assessee in the manner as stated above, the second proviso to section 144(1) reads as under : Provided further that it shall not be necessary to give such opportunity In a case where a notice under sub-section (1) of section 142 has been issued prior to tire making of an assessment under this section. 33. Thus, in view of the second proviso to section 144(1), in a case where notice under section 142(1) has been issued, it is not necessary for the assessing officer to give an opportunity of hearing to tire assessee as provided in section 144(1), prior to making a best judgment assessment. As already seen in the preceding paras, this is a case where notice under section 142(1) was issued to the petitioner and it has also been found that such notices were properly served. Therefore, this case is covered by the second proviso to section 144(1) of the Act and hence there is no substance in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g him to appear on 14.12.2010. In response to the summons, petitioner appeared before the respondent on 18.12.2010 and at his request for time, the case was posted to 22.12.2010. On 22.12.2010, there was no representation on behalf of the petitioner and instead the petitioner appeared before the respondent on 24.12.2010 and at his request, time was granted till 26.12.2010. Even on that date documents were not filed and in such circumstances draft assessment order was prepared and was approved by the Joint Commissioner of Income Tax on 28.12.2010 and the assessment orders evidenced by Exts. P1 to P17 were passed on 29.12.2010. Facts being as above, it has to be concluded that this is not a case where- opportunity was not afforded to the petitioner, but in this case, the petitioner did not utilise those opportunities. Consequently, I am unable to accept the case of the petitioner that in finalising the assessment under section 144 of the Act, natural justice was violated. 36. Yet another contention that was raised by the counsel for the petitioner was that when assessment is completed under section 153C of the Act, it has to be in accordance with section 153A. According to the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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