The Commissioner Of Income Tax-1 v. Thakkar Developers Ltd

ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.840 OF 2011 The Commissioner of Income Tax-1...Appellant. v. Thakkar Developers Ltd...Respondent. Mr. Vimal Gupta, Sr. Advocate i/by Ms. Padma Divakar for the Appellant. Mr. Vipul Joshi i/by Adity & Bhatt with Mr. P.C. Tripathi for the Respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATE : 29TH JANUARY, 2013 PC: In this appeal by the revenue the following question of law has been raised for our consideration. Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in deleting the addition made by the Assessing officer amounting to Rs.30,42,160 as undisclosed income of the assessee for the block period even though the seized material showed that the assessee had made a total payment of Rs.20,92,160 and Rs.9,50,000 towards the cost of purchase of land and other expenses related to the purchase of such land, which was undisclosed by the assessee? 2) Consequent to a search under Section 132(1) of the Income Tax Act, 1961 (“the Act”) on one Balasaheb Kolhe, proceeding under Section 158BD of the Act were initiated against the respondent-assessee by issue of notice on 6/4/2005. The return of income, pursuant to notice was filed by the respondent assessee. Thereafter, notice was issued under Section 143(2) of the Act and the Assessing officer thereafter assessed the respondent assessee to an income of Rs.30.42 lacs by order dated 27/4/2007. 3)In first appeal, the CIT(A) by its order dated 18/3/2008 recorded a finding that the assumption of jurisdiction by Assessing officer was invalid. This was on the ground that no valid notice as provided under Section 158 BC read with Section 143(2) of the said Act was served upon the respondent-assessee within a period of 12 months of filing the return of income. Accordingly, the additions made in the block assessment were deleted. 4) The revenue preferred an appeal against the order of the CIT to the Tribunal. The revenue challenged the order of CIT(A) both on merits as well as on the ground of limitation as provided under Section 143(2) of the Act. The Tribunal in the impugned order has upheld the order of the CIT(A) on merits of the matter. The Tribunal has not rendered any finding with regard to service of notice being beyond the period of limitation provided under Section 143(2) of the Act as decided by the CIT(A). Thus, the finding of CIT (A) that notice was served beyond the prescribed period under Section 143(2) of the Act remain undisturbed. Therefore, the additions made in the block period cannot be sustained. 5)Moreover, this Court by order dated 11/1/2012 in the ASN 4/4ITXA-840.sxw matter of CIT v. Shashikant P. Wani in Income Tax Appeal Lodging No.1427 of 2011 while dealing with another party similarly placed to the respondent assessee in respect of block assessment consequent to search on the said Balasaheb Kolhe has held that where notice under Section 142(2) of the Act is not served within the prescribed period the proceedings are bad being without jurisdiction. Therefore, in view of the order of this Court in the matter of Shashikant Wani (supra), we see no reason to entertain the proposed question of law. We have refused to entertain the appeal only on account of the fact that the issue of notice being barred by limitation the proceedings are without jurisdiction. We have not examined the matter on merits. 6)The appeal is accordingly dismissed with no order as to costs. (M.S.SANKLECHA, J.) (J.P. DEVADHAR, J.)