Itxa/1538/2012 Of Commissioner Of Income Tax - 4 v. Shri Shrikant G. Mantri

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1538 OF 2012 Commissioner of Income Tax-4-Versus-Shrikant G. Mantri ..Appellant ..Respondent ........... Mr. A. R. Malhotra a/w N. A. Kazi for the Appellant.Mr. Hiro Rai i/b. Subhash Shetty for the Respondent. ........... CORAM: S.C. DHARMADHIKARIAND A.A. SAYED, JJ. DATE :- 27[th] NOVEMBER, 2014 P.C.: Having heard Mr. Malhotra, learned counsel, appearing for the Revenue in support of this Appeal which challenges the order passed by the Income Tax Appellate Tribunal, Mumbai Bench, on 29[th] February, 2012 in IT(SS)A No.189/Mum/2005 for the block assessment period 1[st] April, 1988 to 20[th] October, 1998, we are satisfied that the only question termed as substantial question of law is not such. The question raised is nothing but an attempt at re-appreciation and re-appraisal of a factual finding rendered by the Tribunal. The Tribunal recalled its earlier order dated 5[th ]June, 2008 because it was satisfied that the fundamental issue regarding the validity of the proceedings under section 158BD has not been decided. An earlier order was passed by the Tribunal on 5[th] June, 2008, the Tribunal recalled it on 23[rd] July, 2010. The reason for recalling the same was that the satisfaction in terms of section 158BD of the Act and which is to be recorded by the Assessing Officer, has not been so reached and recorded. The only document which was before the Tribunal for consideration of this point and in the given facts and circumstances is a letter at page 79 of the paper book. The Tribunal has reproduced this entire letter dated 30[th] April, 2002. 2]Reading the same in its entirety and as a whole, the Tribunal reached a conclusion that from any satisfaction being recorded therein, it is only an intimation from the office of the Deputy Commissioner of Income Tax, Central Circle-13, New Delhi to the Additional Director of Income Tax (Investigation), Unit-III, Aayakar Bhavan, Mumbai. That does not indicate that the Assessing Officer was satisfied that any undisclosed income belongs to one Shrikant G. Manti, Respondent before us and that the same was detected or discovered during the course of a search carried out on one Romesh Sharma. The search was made under section 132 in this case of the books of account of Mr. Sharma and other document but it is not recorded that any of these enable the Assessing Officer to reach this satisfaction. It could not be left to imagination by the Appellate Court or Authority. In such circumstances, the basic or fundamental requirement for initiation of action under section 158BD has not been fulfilled. That requirement is also set out in a judgment of the Hon'ble Supreme Court in the case of Manish Maheshwari V/s. Assistant Commissioner of Income Tax (2007) 289 ITR 341. Following the ratio of that decision, the Tribunal has concluded that the Assessee's Appeal deserves to be allowed. We do not find any perversity or any error of law apparent on the face of the record in the conclusion reached by the Tribunal. That is reached on the basis of the only document brought to its notice. In such circumstances, the findings of fact deserves to be upheld. The Appeal is devoid of merits and is, accordingly, dismissed. No order as to costs. (A. A. SAYED, J.) (S.C. DHARMADHIKARI, J.) 3/3