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TMI Blog2009 (12) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... fic satisfaction is required to be recorded and therefore, it is not necessary to issue notice under section 158BD before the closure of the assessment of the person searched. It is for the AO to decide while examining the ceased material that it belongs to the person searched or to a third person. Whether such distinction is glaring or not is not material as legal requirement is that of satisfaction of the AO which cannot be done away with. Accordingly, the principles laid down in the two cases i.e. Manish Maheshwari s case [ 2007 (2) TMI 148 - SUPREME COURT] and Manoj Agarwal s case would have to be followed. All the points raised by the ld. DR have been considered in Manoj Agarwal s case and therefore are not required to be separately considered. Thus, respectfully following the decision in Manoj Agarwal s case [ 2008 (7) TMI 446 - ITAT DELHI-A] as well as Kuntesh Bhupatrai Desai s case, we cancel the assessment and allow the appeal of the assessee. Appeal of the assessee is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been issued before passing the order under section 158BC in the case of person searched. Therefore, notice issued under section 158BD is bad in law and accordingly order passed in consequence thereto is also bad in law. She also referred to a decision of ITAT, Ahmedabad Bench in ITA No. 209/A/2007 in Kuintesh Bhupathrai Desai Vs. ACIT pronounced on 26-03-2009 and also arising from the same search on Om Developers, wherein it is held that assessment order passed under section 158BD on the basis of notice issued under that section after passing the order under section 158BC in the case of person searched would be bad in law. For the sake of convenience she referred to para No.6 from that order. "6. We have considered the rival submissions and have also perused the materials available on record. In our considered view, the issue is squarely covered in favour of the assessee and against the Revenue by the decision of I.T.A.T. Delhi Special Bench in the case of Manoj Agarwal (supra). In the light of decision of I.T.A.T. Special Bench, Delhi (supra), the notice u/s 158BD ought to have been issued on or before 31.10.2001. Therefore, the notice u/s 158BD issued on 19.4.2004 to the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the time limit set in sec. 158BE automatically applies for invoking the provisions of sec. 158BD of the Act. The Special Bench has categorically held that for this reason, the Legislature did not find it necessary to specify the separate time limit for the same, as the enactment itself shows that both section 158BC and 158BD are inter-linked, inter-laced, interwined and both form part and parcel of the same Chapter. Respectfully following the decision of I.T.A.T. Special Bench (supra), we hold that the notice dated 19.4.2004 issued u/s 158BD of the Act is time barred and, therefore, the assessment framed on 27.2.2006 u/s 158BD read with sec. 158BC of the Act is without jurisdiction and void ab initio. Accordingly, we quash the assessment order dated 27.2.2006 framed u/s 158BD read with section 158BC of the Act. Since we have quashed the assessment order and, therefore, we do not think it necessary to decide the grounds raised on merits." 3. We have heard ld. AR and ld. DR. The submission of the ld. DR is that where Assessing Officer has to make a choice in following the decision of Hon'ble Supreme Court in Manish Maheshwari's case [2007] 289 ITR 0341 and Manoj Agarwal's case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther to assess the undisclosed income in the hands of the person searched OR in the hands of the other person. As against this the nature of the evidences found in the acse at hand is of such nature that perforce the undisclosed income evidenced therein has to be assessed both in the hands of the person searched AND also in the hands of the other person. e. In this case the Diary B-2 contained notings regarding purchase of flats/units at Chandan Park by various persons. Due particulars of the specific flats, the amount received for it by cheque with details of cheque no. and the amount received in cash are noted in the said diary. Statements of the Builder recorded during search established that the amounts of cash received noted in the diary reflected the unaccounted 'on-money' component received in cash over and above the payments received by cheque. The speaking evidence found thus established both the identity of the buyer as well as the quantum of unaccounted payments made by him to the person searched. f. The nature of the seized evidences in this case thus mandated that the undisclosed income be assessed in the hands of BOTH the recipient of unaccounted cash i.e. the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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