TaxTMI 
TaxTMI 
2009 (9) TMI 615
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....along with the judicial pronouncements related to the penalty provisions. In not doing so, the learned CIT(A) has erred in law and facts. 3. The Hon'ble Tribunal may very kindly cancel the impugned penalty erroneously sustained by the learned CIT(A)." 2. The appeal No. IT(SS)A 14/Jd/2008 raised by the assessee against the order dt. 14th Oct., 2008 of learned CIT(A) (Central), Jaipur raises the following grounds: "1. That on the facts and in the circumstances of the case, in view of the material available on record of the learned CIT(A). Central and applying thereto the relevant provisions of law and applicable judicial pronouncements the learned CIT(A), Central grossly erred in law and in facts in upholding the impugned assessment and the quantum of income assessed by the Dy. CIT, Central Circle-I, Jodhpur. He ought to have in the facts and in the circumstances of the case allowed the appeal of the appellant on legal ground as well as on the factual aspects relating to the quantum of undisclosed income assessed. In not doing so he had erred. 2. That the learned CIT(A), Central has erred and was unjustified in sustaining the impugned assessed income of the appellant. As a matter....
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....ng with the quoting the relevant headnotes and catchnotes and gist as regards to the existence of satisfaction under s. 158BD and the manner in which it ought to have been and by which AO it was required to be noted and recorded, and without which the proceedings are null and void and without jurisdiction. 7. That without prejudice to the generality of the ground No. 3 above, the learned CIT(A) Central has erred and was not justified on facts and in law in ignoring/escaping the direct applicable binding precedent from the Hon'ble apex Court in Manish Maheshwari vs. Asstt. CIT & Anr. (2007) 208 CTR (SC) 97 : (2007) 289 ITR 341 (SC), copy of which was placed on record along with the quoting the relevant headnotes and catchnotes in support of the submission that neither any valid jurisdiction was acquired nor any valid notice seeking return of income was issued and serviced nor the recording of mandatory satisfaction under s. 158BD made and complied with and the notice in the manner in which the AO had issued, the Hon'ble Supreme Court had struck down in the above case, holding no proper jurisdiction available to AO. 8. That without prejudice to the generality of the ground No. 3 ab....
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....n under s. 154 that. 'However, there is no effect in any manner in the merit of the case as the reasons recording always precedes the initiation of action under the provision of Act'. So far as the generality of the finding is concerned there cannot be any dispute. But the question is that here in the appellant's case the reasons were required to be recorded in the case of the search warrantee, Shri V.R. Khariwal from whose custody the papers were found during the course of search at his residence, which were not recorded and then the recording of the reason in the case of the appellant himself is of no avail and is therefore, illegal rendering the whole proceedings as null and void. 4. That in the facts and in the circumstances of the case, in view of the material available on record of the learned CIT(A) Central, Jaipur and applying thereto the relevant and obvious facts and applicable obvious provisions of law and also applicable judicial pronouncements the learned CIT(A) Central has grossly erred in law and in facts in bringing on record at p. No. 2-last para continued to page No. 3, the irrelevant facts not in consonance with the facts of this case to decide the legal issue r....
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....various types of records of the company/other employees which were not in the type of regular books of account but some documents were for the purpose of evading tax in the hands of the company/its employees. A search was simultaneously conducted at the residence of Shri Vijay Raj Khariwal. During the course of search at the residence of Shri Khariwal copy of bank accounts of Shri V.B. Giri, storekeeper of the company was found and seized. Shri V.B. Giri had accounts with SBBJ, Sojati Gate and Bank of Baroda, Sojati Gate. The deposits made in these accounts were not proportionate with sources of his income. Accordingly detailed enquiries were carried out by the Investigation Wing. Before the Asstt. Director of IT, Shri Giri stated that the amount deposited in his account belongs to his friend whose whereabouts he was totally unaware. This appeared to be a cooked up story and prima facie unbelievable. Since Shri Giri was employee in the aforesaid company and as stated above accounts of the company/its employees were kept by Shri Khariwal, the finance manager. Shri V.B. Giri was summoned on block assessment proceedings of the company on 14th Dec., 2004 again to enquire whether the s....
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....h reference to following judgments and sub-r. (6) of r. 18 of ITAT Rules, 1963. (i) Manish Maheshwari vs. Asstt. CIT & Anr. (2007) 208 CTR (SC) 97 : (2007) 289 ITR 341 (SC); (ii) New Delhi Auto Finance (P) Ltd. vs. Jt. CIT (2008) 217 CTR (Del) 628 : (2008) 300 ITR 83 (Del); (iii) Ved Parkash Sanjay Kumar vs. Asstt. CIT (2000) 66 TTJ (Chd) 442 : (2001) 76 ITD 107 (Chd); (iv) Manoj Aggarwal vs. Dy. CIT (2008) 117 TTJ (Del)(SB) 145 : (2008) 113 ITD 377 (Del)(SB). Admittedly the AO of the searched person namely. Shri Vijay Raj Khariwal and that of the appellant is the same. The Revenue also admits that the satisfaction note for initiating proceedings under s. 158BD of IT Act as aforesaid. has been recorded in the case of appellant. Shri V.B. Giri as is also borne out from the assessment record produced before the Tribunal. The Revenue has also produced the assessment record in the case of searched person namely, Shri Vijay Raj Khariwal. A letter dt. 7th Sept., 2009 written by Shri S.C. Kharra, ITO, Ward 3(3), Jodhpur holding present jurisdiction of the searched person has been placed on record admitting clearly that he has examined the assessment record of that person and no satis....
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.... "Sec. 158BD-Where the AO is satisfied that any undisclosed income belongs to any person other than the person with respect to whom search was made under s. 132 or whose books of account or other documents or any assets were requisitioned under s. 132A then, the books of account other documents or assets seized or requisitioned shall be handed over to the AO having jurisdiction over such other person and that AO shall proceed against such other person and the provisions of this chapter shall apply accordingly." 10. Hon'ble apex Court in the case of Manish Maheshwari vs. Asstt. CIT & Anr. has explicitly elaborated the conditions precedent for invoking the block assessment as under: "The condition precedent for invoking a block assessment is that a search has been conducted under s. 132 or documents or assets have been requisitioned under s. 132A. The said provision would apply in the case of any person in respect of whom search has been carried out under s. 132A or documents or assets have been requisitioned under s. 132A. Sec. 158BD, however, provides for taking recourse to a block assessment in terms of s. 158BC in respect of any other person, the conditions precedent wherefore....