9911796707
TMI Blog2016 (8) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section of the Act. On this count also, there could not have been any assessment on 01.12.1997. Thus, the Revenue’s claim that Notice u/s.158BD of the Act issued on 29.08.1997 was a valid Notice and that the consequential assessment framed on 24.12.1997 was within limitation cannot be accepted and is void ab initio being barred by time. Thus, the action of the A.O. of withdrawing the Notice u/s.158BC and issuing fresh Notice u/s.158BD of the Act is illegal and bad in law. There is no provision in the Act for initiating reassessment proceedings for block period, either u/s.147 or 158BC or 158BD of the Act. Therefore, both the actions of the Assessing Officer are illegal and bad in law. Tribunal was completely justified in holding that the block assessment passed u/s.158BD r/w. Section 158BC was barred by time and therefore, void ab initio. Thus, we answer the question in the affirmative, i.e. in favour of the assessee and against the Revenue. - TAX APPEAL NO. 1063 of 2009 - - - Dated:- 4-8-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR NITIN K MEHTA, ADVOCATE FOR THE OPPONENT : MR MANISH J SHAH, ADVOCATE ORAL JUDGMENT (PER : HONOUR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment passed u/s.158BD r/w. Section 158BC in the instant case was barred by time and therefore, void ab initio ? 2. The facts in brief are that a search operation under Section 132 of the Act was carried out in the premises of M/s. Gokul Corporation and its Partners on 21.09.1995 and certain incriminating documents pertaining to the assesseefirm were traced in the said search. The assessment in the present case was consequent upon the statements recorded during the proceedings of the aforesaid search. On 24.12.1997 assessment was completed u/s.158BC(c) r/w. Section 158BD and 158BA for the block period 01.04.1985 to 31.03.1995 and 01.05.1995 to the date of search, i.e. 21.09.1995, on an undisclosed income of ₹ 50 Lacs. In the first instance, the A.O. issued Notice u/s.158BC on 04.11.1996. Subsequently, when the A.O. realized that Notice u/s.158BC had been issued to a person who was not searched, Notice u/s.158BD of the Act was issued. The assessment order was passed u/s.158BC r/w. Section 158BD and Section 158BA of the Act on 24.12.1997. The assessment was getting barred by limitation on 30.09.1998 according to the A.O., i.e. one year from the end of the month on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.1997, it is illegal and bad in law being barred by time. 5.2 It was further submitted that the proceedings initiated by way of Notice u/s.158BC of the Act issued on 17.10.1996 having been concluded by the A.O. as a result of withdrawal of the Notice u/s.158BC of the Act on 29.08.1997, the issuance of fresh Notice u/s.158BD on 29.08.1997 as well as subsequent assessment were illegal and bad in law. According to him, there is no provision for initiating reassessment proceedings for block period, either u/s.147 or u/s.158BD or 158BC of the Act. Therefore, the Tribunal was completely justified in setting aside the order of assessment. 6. We have heard learned counsel for both the sides and perused the documents on record. In order to resolve the controversy on hand, certain provisions of the Act require to be noticed by us. Chapter XIVB of the Act is a special provision carved out by the Legislature for the purpose of assessment in cases pertaining to Sections 132 and 132A of the Act. The said Chapter was introduced by the Finance Act, 1995 with effect from 01.07.1995 and comprises Sections 158B to 158BH of the Act. The provisions under this Chapter were made inapplicable in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn in the prescribed form and verified in the same manner as a return under clause (i) of subsection (1) of section 142, setting forth his total income including the undisclosed income for the block period: Provided that no notice under section 148 is required to be issued for the purpose of proceeding under this Chapter: Provided further that a person who has furnished a return under this clause shall not be entitled to file a revised return;] (b) The Assessing Officer shall proceed to determine the undisclosed income of the block period in the manner laid down in section 158BB and the provisions of section 142, subsections (2) and (3) of section 143 [section 144 and section 145] shall, so far as may be, apply; (c) The Assessing Officer, on determination of the undisclosed income of the block period in accordance with this Chapter, shall pass an order of assessment and determine the tax payable by him on the basis of such assessment; (d) The assets seized under section 132 or requisitioned under section 132A shall be dealt with in accordance with the provisions of section 132B.] Section 158BD. UNDISCLOSED INCOME OF ANY OTHER PERSON. Where the Assessing Officer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the assessee on 17.10.1996, which was served upon the assessee on 04.11.1996. Therefore, assessment could have been framed latest by 30.11.1997. However, on 29.08.1997, the Assessing Officer withdrew the Notice issued u/s.158BC of the Act and issued a fresh Notice u/s.158BD of the Act on 29.08.1997. On 17.10.1996 the Notice issued u/s.158BC of the Act was a valid notice. 13. However, the proceedings initiated on the basis of this Notice stood concluded on 29.08.1997, when the A.O. informed the assessee of having withdrawn the Notice u/s.158BC of the Act, meaning thereby, that the proceedings initiated on 17.10.1996 was valid for all intent and purposes but, stood concluded on 29.08.1997. Therefore, there was no question of reviving those proceedings by way of issuing a fresh Notice under any other Section of the Act. On this count also, there could not have been any assessment on 01.12.1997. Thus, the Revenue s claim that Notice u/s.158BD of the Act issued on 29.08.1997 was a valid Notice and that the consequential assessment framed on 24.12.1997 was within limitation cannot be accepted and is void ab initio being barred by time. Thus, the action of the A.O. of withdrawin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
