Tax Appeal v. Gopal Kashinath Kale (Huf

( 1 ) Tax Appeal No.11 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD TAX APPEAL NO.11 OF 2011 The Commissioner of Income Tax, NashikPETITIONER VERSUS Gopal Kashinath Kale (HUF) RESPONDENT Mr.D.V.Soman, Advocate for petitioner.Mr.R.R.Chandak, Advocate for respondent. (CORAM : S.C.DHARMADHIKARI AND RAVINDRA V.GHUGE, JJ.) DATE : 23/01/2014 PER COURT: 1.We have heard Adv.Mr.Soman, appearing on behalf of the appellant/Revenue. We have perused with his assistance the order passed by the Commissioner of Income Tax (Appeals) and that of the Tribunal. 2.In allowing the assessee's cross-objections and dismissing the appeal of the Revenue, the Tribunal has rendered a finding of fact. It has perused the assessment order and the referent document to ( 2 )Tax Appeal No.11 of 2011invoke section 158BC of The Income Tax Act, 1961. The Appellate Tribunal has concluded that the notice issued to the Assessee cannot be said to be vitiated merely by not mentioning the correct legal provision or Section of the Income Tax Act. The Tribunal has not just gone by the form of the matter but by its substance. In perusing the notice and the related documents, it arrived at a conclusion that the premises of Mr.Gopal Kashinath Kela were searched in his individual capacity and on the basis of the incriminating documents. That was to trace the undisclosed income of any other person. This was not a case where a notice for block assessment was issued. 3.While rendering such findings of fact, the Tribunal has not committed any error in allowing the cross objections preferred by the Assessee and dismissing the revenue’s appeal. The present appeal is, therefore, devoid of any merits and is dismissed. 4.To be fair to learned Advocate Mr.Soman, we must refer to Section 292BB of The Income Tax Act, 1961. The submission of Mr.Soman is that the impugned notice and actions in pursuance thereof, are deemed to be valid on account of the presumption that is ( 3 )Tax Appeal No.11 of 2011 raised by this Section. We are afraid that the Section cannot be of any assistance to him in as much as the presumption raised thereby is of service of the notice. That the Assessee therefore, will not be able to raise the objection about service and after having participated and co-operated in the enquiry, is obvious. This provision, therefore, cannot apply and the notice in question cannot be saved by taking recourse to Section 292BB of The Income Tax Act, 1961, as well. In this situation, even going by these submissions of learned Advocate Mr.Soman, no substantial question of law arises for determination in this appeal. ( RAVINDRA V.GHUGE, J.)( S.C.DHARMADHIKARI, J. )