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TMI Blog2014 (10) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... remises of R. K. Madhani & Co. and other group cases. The matter travelled to the tribunal, which vide its order dated 28.11.2008 (in IT(SS) A No. 238/Mum/2001), annulled the assessment on the short legal ground that the assessee being not the person searched, no assessment u/s.158BC(c) could be made thereon. The tribunal having in fact upheld the order by the first appellate authority dated 30.05.2001, the Revenue proceeded against the assessee by the issue of notice u/s.158BD on 30.07.2001, finalizing the assessment thereunder on 28.07.2003 at Rs. 77.67 lacs, i.e., the sum at which the assessment was initially made u/s.158BC. Penalty order u/s. 158BFA(2) was also passed on 31.03.2005. The Commissioner of Income Tax Appeals-XVIII, Mumbai ('CIT(A)' for short) allowed partial relief to the assessee-appellant, both qua the assessment as well as the penalty levied u/s.158BFA. The Revenue carried the matter in appeal against the said relief allowed by the ld. CIT(A), i.e., on both quantum (in IT(SS)A No. 174/Mum/2004) and penalty (in IT(SS)A No. 19/Mum/2007), which stood disposed by the tribunal by a combined order dated 29.12.2010, which stands impugned vide the instant applications. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts on record, even as without doubt only the material already on record can be taken cognizance of by the tribunal. Recording of satisfaction is a condition precedent for initiation of proceedings u/s.158BD, even as clarified by the apex court in Manish Maheshwari (Indore Construction Pvt. Ltd.) vs. CIT [2007] 289 ITR 341 (SC). A mere intimation could not be regarded as a satisfaction. 4. We have heard the parties, and perused the material on record. 4.1 As evident from the foregoing, the Revenue claims that there has been due recording of satisfaction by the A.O. (of the person searched), coupled with it's conveyance, along with the relevant material, to the assessee's A.O., in due compliance of the procedure contemplated u/s.158BD. The tribunal's finding that it is not so, which forms the basis of its quashing the assessment and, consequently, the penalty, is therefore factually incorrect, necessitating rectification. The assessee's case, on the other hand, is that the matter had been duly considered by the tribunal. Its consideration again would amount to a review, which is impermissible, and which is what the Revenue seeks in the garb of rectification. 4.2 The relevant findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng been considered by the tribunal, so that it could not be revisited again u/s. 254(2), but only subject to review following the appellate procedure. The assessee alludes to letter dated 27.01.2010, and which further has reference to letter dated 21.08.2000. The same does not assist the assessee's case in any manner. On the contrary, it establishes that of the Revenue. The letters enclosed along with, being dated 23.09.2009 and 29.12.2008, is the communication between the assessee's A.O. and the ld. CIT-DR, representing the Revenue's case before the tribunal, in respect of the Revenue's appeals before it. Also enclosed along with is the order sheet entry dated 30.08.2000 by the assessee's A.O. on the receipt of the letter dated 21.08.2000, prior to the issue of notice u/s.158BC on that date. There is ample reference in all of them to the letter dated 21.08.2000 in relation to the satisfaction of the A.O. of the person searched, and also includes the said letter, which we find to have been even separately filed. The said material thus forms part of the tribunal's record. In the absence thereof, it was, in view of, as afore-stated, the impugned order being sans any reference to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if not for assessment of income as per law? The letters 21.07.2010, 23.09.2009 and 29.12.2008 (supra); the statement recorded u/s. 132(4) of Shri G. R. Madani on 18.12.1998 (PB pg.4); the warrant of authorization dated 17.12.1998, et. al. are all supplementary materials, and have to be considered. Whether the satisfaction stands correctly recorded; whether the same is in the manner as contemplated under the Act; whether these matters are at all justiciable, etc. are all matters of arguments, which do not arise out of the tribunal's order, including the questions raised, and the arguments made in pursuance thereof, before it. Even otherwise, it is doubtful if these aspects could be considered in the rectification proceedings. Rather, as apparent from the reading of paras 3 to 7 of the impugned order, the arguments pertained to the satisfaction dated 30.08.2000, i.e., by the assessee's A.O., and which having not been separately recorded again by the present A.O., was argued by the assessee to be violative of the scheme of the Act. As we observe, the tribunal confused the issue of notice u/s.158BD, i.e., on 30.07.2001, with the recording of the relevant satisfaction - which is to be b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so note, not accepted the order by the tribunal dated 28.11.2008 (supra), dismissing the Revenue's appeal quashing the assessment u/s.158BC dated 29.12.2000, but preferred an appeal there-against before the hon'ble jurisdictional high court (in ITA No. 5138 of 2010). The hon'ble court, however, vide its order dated 27.03.2012 (copy on record), disposed of the same by stating that the Revenue had since framed an assessment (i.e., the subject assessment), and which stands also reviewed by the tribunal vide its order dated 29.12.2010, so that it declined to answer the questions of law sought to be raised before it by the Revenue, which was further advised to pursue such remedies as available to it under law, i.e., in respect of the impugned order. We place these facts and aspects of the matter on record to bring forth clarity on the facts of the case. 4.4 In view of the foregoing, the impugned order is accordingly amended by vacating the findings by the tribunal per the impugned order, i.e., as to the absence of the jurisdictional facts for the Revenue to proceed u/s.158BD. The Revenue's appeals are accordingly restored for being decided on merits, i.e., on all grounds, for which pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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