2012 (9) TMI 468 - AT - Income Tax

Appeal dismissed due to delay in proceedings under Section 158BD. Invalid addition by AO deleted.

The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision that the proceedings under Section 158BD were invalid due to inordinate ... Undisclosed income of another person u/s 158BD - validity of assessment proceedings u/s 158BC r.w.s. 158BD, when proceedings was initiated after the completion of the assessment of the person searched - search u/s 132 carried out at the business premise of Ohm Developers on 29.10.1999 and assessment of same completed on 30.11.2001 - notice u/s.158BD r.w.s. 158BC issued to assessee on 22.01.2007 - Held that:- Several Co-ordinate Benches have unanimously held that the belated issuance of notice u/s.158BD was barred by limitation. Therefore, CIT(A) rightly deleted the addition on observation that there was an inordinate delay in initiating and completing the proceedings u/s.158BC r.w.s. 158BD. Though, the Act does not lay down any time limit for initiating proceedings u/s.158BD yet, equity demands that proceedings should not be kept pending indefinitely and the Sword of Damocles be kept hanging over the head of the taxpayer for an indefinite period - Decided in favor of assessee Issues Involved:1. Validity of proceedings initiated under Section 158BD of the Income Tax Act, 1961.2. Deletion of addition made by the Assessing Officer (AO) on account of unaccounted on-money paid by the assessee.Detailed Analysis:1. Validity of Proceedings Initiated under Section 158BD:The primary issue raised by the Revenue was the validity of the proceedings initiated under Section 158BD of the Income Tax Act, 1961, due to an alleged inordinate delay. The search at the business premises of M/s. Ohm Developers was conducted on 29/10/1999, and the notice under Section 158BD read with Section 158BC was issued on 22/01/2007 and served on 31/01/2007. The assessee contended that there was no satisfaction note recorded by the AO in possession of the search material, and the proceedings were initiated after the completion of the assessment of the person searched, making them invalid. Reliance was placed on the judgments in Manish Maheshwari 289 ITR 341 (SC) and Khandubhai Vasanji Desai & Ors. Vs. Dy.CIT 236 ITR 73 (Guj.).The CIT(A) held the proceedings as invalid primarily due to the delay, noting that the assessment of M/s. Ohm Developers was completed earlier, and the notices under Section 158BD were issued five years later. The CIT(A) emphasized that while there is no specific time limit prescribed for initiating proceedings under Section 158BD, equity demands that such proceedings should not be kept pending indefinitely. The CIT(A) concluded that the inordinate delay rendered the proceedings invalid, and consequently, the addition of Rs. 3,25,000 made by the AO was deleted.2. Deletion of Addition Made by the Assessing Officer:The AO had observed from the notings on pages-42 of Khatavahi marked as BS-2/26 that the assessee had paid a sum of Rs. 6,15,950 as on-money towards the purchase of a flat at Chandan Park. However, the CIT(A) found that the proceedings under Section 158BD were initiated after an inordinate delay, and hence, the addition of Rs. 3,25,000 made by the AO was not sustainable. The CIT(A) emphasized that the authorities failed to utilize and communicate the information on time, and the assessee could not be penalized for such a long delay.Tribunal's Decision:The Tribunal noted that the issue had already been decided in several appeals, where it was unanimously held that the belated issuance of notice under Section 158BD was barred by limitation. The Tribunal referred to various cases, including Vimal Vadilal Shah vs. DCIT, Balvantrai V. Mehta vs. ACIT, and others, where it was held that without satisfaction recorded prior to the completion of the assessment of the person searched, proceedings initiated under Section 158BD were not valid. The Tribunal also referred to the decision of the Hon'ble Punjab & Haryana High Court, which upheld that the recording of satisfaction for taking action under Section 158BD must be between the initiation of proceedings under Section 158BC and before the completion of the block assessment under Section 158BC of the person searched.Following these precedents, the Tribunal concluded that the block assessment proceedings initiated under Section 158BD against the assessee were not legally valid due to the inordinate delay. Consequently, the Tribunal dismissed the ground raised by the Revenue and upheld the CIT(A)'s decision to delete the addition made by the AO.Conclusion:The Revenue's appeal was dismissed, and the Tribunal upheld the CIT(A)'s decision, concluding that the proceedings under Section 158BD were invalid due to the inordinate delay, and the addition of Rs. 3,25,000 made by the AO was rightly deleted.