9911796707
TMI Blog2002 (6) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. as determined under the Kar Vivad Samadhan Scheme, 1998 (hereinafter refer red to as "the Scheme"), came to be rejected. They 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. and to refund the tax collected by the respondent in excess of 30 per cent. A few facts which are not in serious dispute may be stated as hereunder: The residential premises where all the petitioners were residing and also the office premises where the professional activities of petitioners Nos. 1 and 5 in their individual capacity were being carried out were searched by the officers of the Income-tax Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ringing to his notice that since there was no search of the residential premises occupied by the petitioners, it was not permissible for the respondent to determine the tax payable by the petitioners under the Scheme at 40 per cent. and, therefore a revised certificate may be issued calculating the correct tax to enable the petitioners to make the payment within time to avail of the benefit under the Scheme. However, the request made by the petitioners for issue of revised certificate was turned down by the respondent in the impugned communication--annexure D dated March 24, 1999. Sri Parthasarathy, learned counsel appearing for the petitioners, firstly submitted that the determination of the liability of the petitioners to pay tax at 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he submitted that since it cannot be disputed that the order of assessment is based on a search of the premises wherein the petitioners were residing, there is no error made in the impugned orders of assessment rejecting the claim of the petitioners to modify the certificate issued determining the liability of the petitioners to pay tax at 40 per cent. Secondly, he submitted that in the light of the decision of the Supreme Court in the case of ITO v. Seth Brothers [1969] 74 ITR 836, the decision of this court in the case of Nenmal Shankarlal Parmer v. Asst. CIT [1992] 195 ITR 582, is no longer a good law. He referred me to the observation made in the said judgment at page 847 which reads as hereunder: "We are unable to hold that because th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability to pay tax at 40 per cent. in terms of section 88(a)(v)(B) of the Scheme. As noticed by me earlier, the only requirement of section 88(a)(v)(B) of the scheme is that the assessment should have been made on the basis of the search and seizure proceedings conducted either under section 132 or section 132A of the Act. It is not in dispute that the order of assessment refers to the materials collected at the time of the search of the premises occupied by the petitioners. When that is the position, it is not possible for me to accept the contention of learned counsel appearing for the petitioners that since the warrant of search was not issued to all the petitioners prior to the search of the premises and materials collected at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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