Satyanarayan Prasad v. Commissioner Of Income Tax, Central, Patna

IN THE HIGH COURT OF JUDICATURE AT PATNAMiscellaneous Appeal No.352 of 2010 ====================================================== Satyanarayan Prasad, S/o Late Karu Sah, C/o M/s Kiran Prakashan, P.O.Bankipur, P.S Kadamkaun, Naya Tola in the District of Patna. ... ... Appellant/s Versus 1. Commissioner of Income Tax, Central, Patna. 2. Assistant Commissioner of Income-tax, Central Circle-2, Patna. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASADORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 23-04-2018 This appeal by the assessee calls in questiontenability of orders passed by the Appellate Tribunal on 30[th] ofOctober, 2009, the order of the Appellate Authority dated13.11.2006 and the assessment order based on search conductedin the premises of the appellant on 25.07.2000 for the assessment year 1991-92. While admitting the appeal on17.04.2015 the following questions have been formulated:- “I. “Whether on the facts and in the circumstancesof the appellant’s case the tribunal is correct inholding that the statement of the appellantrecorded in course of survey under Section133A is an evidence/relevant material gathered“as a result of search”?of the appellant’s case the tribunal is correct inholding that the statement of the appellantrecorded in course of survey under Section133A is an evidence/relevant material gathered“as a result of search”? II. Whether on the facts and in the circumstances ofthe appellant’s case, in absence of notice underSection 143(2), the entire assessmentproceeding is void ab initio?” the appellant’s case, in absence of notice underSection 143(2), the entire assessmentproceeding is void ab initio?” As far as Question No. II is concerned, the issuehas been very well settled by a judgment of the Supreme Courtin the case of Assistant Commissioner of Income-Tax andanother Vs. Hotel Blue Moon- [2010] 321 ITR 362 (SC),wherein it has been clearly held that in cases of blockassessment issuance of notice under Section 143(2) of theIncome Tax Act is a mandatory requirement and blockassessment done without such a notice is unsustainable. In thiscase, there is no material to indicate as to whether beforeconducting the block assessment in question notice, as required under Section 143(2), has been issued or not. In fact, this legalquestion is raised for the first time in this appeal and as theorders impugned do not indicate that before proceeding with theassessment the notice under Section 143(2) was ever issued,even the order of assessment is silent on this question, weremand the matter back to the Appellate Authority, namely, theAppellate Tribunal for considering this question. As far as question No. I is concerned, we find thatthe assessment order only speaks about the statement recordedin the course of survey conducted under Section 133A. Theassessment order does not refer to any other evidence orrelevant material collected during the survey or search whichco-relates to and is corroborative of the statement made by theappellant under Section 133A. As we are remanding the matter back forconsidering the second question formulated, we direct theAppellate Authority namely the Appellate Tribunal to examinethe question as to whether the assessment order was basedsolely on the statement of the assessee under Section 133Arecorded at the time of survey or the same was supported by anyother evidence or relevant material gathered during the processof search. This issue may also be considered by the Appellate Authority, namely, the Appellate Tribunal while considering thequestion on remand made by this Court. Accordingly, the appeal stands allowed to theextent indicated hereinabove and the matter remanded back tothe Appellate Tribunal for reconsideration. (Rajendra Menon, CJ) (Rajeev Ranjan Prasad, J) P.K.P./- As we are remanding the matter back forconsidering the second question formulated, we direct theAppellate Authority namely the Appellate Tribunal to examinethe question as to whether the assessment order was basedsolely on the statement of the assessee under Section 133Arecorded at the time of survey or the same was supported by anyother evidence or relevant material gathered during the processof search. This issue may also be considered by the Appellate Authority, namely, the Appellate Tribunal while considering thequestion on remand made by this Court. Accordingly, the appeal stands allowed to theextent indicated hereinabove and the matter remanded back tothe Appellate Tribunal for reconsideration. (Rajendra Menon, CJ) (Rajeev Ranjan Prasad, J) P.K.P./- AFR/NAFRN.A.F.R.CAV DATEN.A. Uploading Date02.05.2018Transmission Date