9911796707
TMI Blog2002 (6) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... y also prayed for a direction to the respondent to modify the tax demanded in the certificate issued under section 90(1) of the Scheme and to restrict the tax liability of the petitioners only at 30 per cent. - these petitions are liable to be rejected. Accordingly, they are rejected. - - - - - Dated:- 4-6-2002 - Judge(s) : P. VISHWANATHA SHETTY. JUDGMENT P. VISHWANATHA SHETTY J.-The petitioners in these petitions are assessees under the provisions of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). In these petitions they have called in question the correctness of the communication dated March 24, 1999, a copy of which has been produced as annexure D along with the writ petitions wherein the claim of the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als before the Income-tax Appellate Tribunal, Bangalore Bench, Bangalore; and while the said appeals were pending, consequent upon the introduction of the Scheme they made a declaration under section 88 of the Scheme by computing their tax liability at 30 per cent. in terms of the provisions contained in section 88(a). The respondent on receipt of the declaration filed by the petitioners issued certificates determining the liability of the petitioners to pay tax under the scheme at 40 per cent. as against the claim of the petitioners made in their declaration at 30 per cent. Thereafter, aggrieved by the determination of the tax liability of the petitioners at 40 per cent. by the respondent, each of the petitioners separately filed applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners to pay tax at 40 per cent. He pointed out that since the warrants for search were issued only in the names of petitioners Nos. 1 and 5, the liability imposed on the petitioners to pay tax at 40 per cent. under the scheme is erroneous in law. Sir Parthasarathy, in support of his contention that a search is required to be preceded by a warrant and if that is not done, such a search cannot be considered as one done under section 132 of the Act, relied upon a decision of this court in the case of Nenmal Shankarlal Parmer v. Asst. CIT [1992] 195 ITR 582 made in Writ Petition No. 14894 of 1991 disposed of on November 19, 1991. However, Sri Sheshachala, learned counsel for the respondent, strongly countering the submissions of lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners the search warrants were issued in the names of petitioners Nos. 1 and 5. Under these circumstances, merely because the search was not preceded by a warrant issued to the petitioners, in my view, it is not permissible for the petitioners to contend that the order of assessment is not based on a search of the premises under section 132 of the Act. Section 88(a)(v)(B) of the Act does not make service of a search warrant a condition precedent to fasten the liability of an assessee to pay tax at 40 per cent. The only requirement of the said provision is that the assessment should have been made on the basis of the search and seizure proceedings under section 132 or section 132A of the Act. Any infirmity in the procedure followed at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners to get the order of assessment modified by the appellate authority. It is also admitted by learned counsel for the petitioners that the petitioners had unsuccessfully challenged the order of assessment before the first appellate authority and when the matter was pending before the Tribunal, the petitioners wanted to take the benefit of the scheme. Therefore, so long as the order of assessment remained undisturbed and the petitioners sought to take the benefit of the scheme, it is not permissible for the petitioners to contend that the search made was not preceded by a warrant issued to the petitioners. In the light of the above conclusion reached by me, I find it unnecessary to go into the question as to whether the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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