Assistant Commissioner Of Income Tax 25(3), Mumbai … v. Pg 1 Of 3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1473 OF 2012 Assistant Commissioner of Income Tax 25(3), Mumbai … AppellantVs.Smt. Dayaben L. Rathod … Respondent..... Mr. Arvind Pinto, for the Appellant. …. CORAM : S.C. DHARMADHIKARI AND S.C. GUPTE, JJ. DATE : 03 DECEMBER 2014 P.C : .Heard Mr. Pinto, appearing on behalf of the Revenue in support of this appeal, which challenges the order dated 21 March 2012 passed by the Income Tax Appellate Tribunal, Mumbai Bench in IT(SS) Appeal No.12 of 2010. The Assessment for the block period of 1 April 1995 to 31 March 2005 required after a search being carried out of the premises of a distinct entity M/s. Sheth Developers at which certain documents were seized. That search took place on 21 February 2002. The cash books seized during the course of search, according to the Revenue, revealed that one Smt. Dayaben Rathod, respondent before us, paid Rs.19,66,000-/ for purchase of a flat on various dates. Based on this information, the Assessing Officer issued a letter dated 29 November 2004 to the Assessee requiring her to explain the source and details of payment made for the purchase of flat and other deals. The Respondent Assessee failed to furnish any reply and, therefore, an intimation was sent by way of a letter dated 3 May 2005. On receipt of information, Pg 1 of 3 notice u/s 158BD of the I.T. Act was issued and served on the Assessee. Thereafter, the Assessee filed the block return on 13 November 2006 declaring Nil undisclosed Income. 2.The argument before the Commissioner and equally the Tribunal is that the Assessing Officer was satisfied that there is undisclosed income of the Assessee and that is why an intimation was sent to her on 3 May 2005 requiring her to file the block return. She did not respond to the prior and the subsequent communications and, hence, the notice under section 158BD of the Income Tax Act, 1961 was issued and served on 3 August 2005 requiring her to file the block return in Form 2B within 20 days of receipt of this notice. The assessee filed the block return on 13 November 2006 declaring NIL undisclosed income. 3.An assessment order was passed on 27 July 2007 by Assessing Officer assessing the total income at Rs.19,66,000/-. 4.Aggrieved by this order, the assessee went in appeal before the Commissioner. The Commissioner disposed off the appeal on 25 February 2008. 5.Aggrieved by this disposal of the appeal, the assessee approached the Tribunal and the Tribunal passed an appellate order on 27 April 2009 remitting the case to this first Appellate Authority, namely, the Commissioner of Income Tax (Appeals), for fresh adjudication. The Tribunal order dated 27 April 2009 was complied with by the Commissioner and he allowed the assessee's appeal on 23 November Pg 2 of 3 2009. Against such an order, the Revenue approached the Tribunal and it has dismissed the Revenue's appeal by the impugned order. 6.Upon perusal of the appeal paper-book including impugned order, we are of the opinion that a pure finding of fact has been recorded by the Tribunal. The pure finding of fact is that the notice issued in this case and under Section 158BD of the Income Tax Act, fails to record the satisfaction of the Assessing Officer that any undisclosed income belongs to any person other than the person with respect to whom search was made under Section 132 then, the books of accounts or other documents or assets seized or requisitioned under Section 132A shall be handed over to the Assessing Officer concerned and in order to enable him to proceed in accordance with law. The A.O. having jurisdiction over such other person can proceed only after this satisfaction and not otherwise. 6.Upon perusal of the appeal paper-book including impugned order, we are of the opinion that a pure finding of fact has been recorded by the Tribunal. The pure finding of fact is that the notice issued in this case and under Section 158BD of the Income Tax Act, fails to record the satisfaction of the Assessing Officer that any undisclosed income belongs to any person other than the person with respect to whom search was made under Section 132 then, the books of accounts or other documents or assets seized or requisitioned under Section 132A shall be handed over to the Assessing Officer concerned and in order to enable him to proceed in accordance with law. The A.O. having jurisdiction over such other person can proceed only after this satisfaction and not otherwise. 7.The notice, which has been reproduced in the Tribunal's order in its entirety at para 4 page 56-57 of the paper-book, reveals that there was no satisfaction and which was the pre-requisite or pre-condition to proceed. Once the Commissioner and the Tribunal concurrently hold that the exercise carried out is not in accordance with law for failure to record such satisfaction, then the appeal does not raise any substantial question of law. The finding of fact cannot be termed as perverse or vitiated by any error of law apparent on the face of record. The Appeal has no merit and is dismissed. No costs. (S.C.GUPTE, J.) (S.C. DHARMADHIKARI, J.) Pg 3 of 3