2017 (3) TMI 273

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....r passed in IT (SS) No. 18/AHD/2000 and has ordered to restore the said appeal to file, the Revenue has preferred Tax Appeal No. 866 of 2008 to consider the following substantial question of law. "1.Whether the Appellate Tribunal is right in law and on facts in recalling its entire earlier order dated 17.11.2006 on the ground that ground Nos. 1 and 2 were allegedly not disposed of ? 2.Whether the impugned order of the Appellate Tribunal does not amount to review of the earlier order?" 2.1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 15.05.2009 passed by the learned Tribunal passed in IT(SS) A.No.18/AHD/2000 for the Block Period 1.4.1986 to 31.3.1996 and 1.4.1996 to 1.8.1996, by which, the learned Tribunal has allowed the said appeal preferred by the assessee and has quashed and set aside the block assessment framed under Section 158BC r.w.s.158BD of the Income Tax Act, the Revenue has preferred Tax Appeal No. 1002 of 2010 to consider the following substantial question of law. "Whether the Appellate Tribunal is right in law and on facts in reversing the order passed by the CIT(A) and thereby cancelling the block assessment framed u/s. 15....

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....l and by judgment and order dated 15.5.2009, the learned Tribunal has allowed the said appeal and has quashed and set aside the block assessment under Section 158BC r.w.s.158BD of the Income Tax Act mainly on the ground that satisfaction has been recorded after assessment was completed in the case of searched person. (judgment and order dated 15.05.2009 in IT(SS) A No.18/AHD/2000 is the subject matter of Tax Appeal No. 1002 of 2008). 3.4. That despite the fact that earlier judgment and order dated 17.11.2006 passed in IT(SS) A No.18/AHD/2000, by which, the learned Tribunal remanded the matter to the AO, subsequently came to be recalled and the said appeal was ordered to be restored to file, the AO on remand passed the fresh block assessment order. The subsequent block assessment order passed by the AO came to be challenged by the assessee before the learned Tribunal mainly only on the ground that once the remand order vide order dated 17.11.2006 passed in IT(SS) A No.18/AHD/2000 was recalled, there was no question of AO passing the fresh order on remand and therefore, subsequent block assessment is without jurisdiction. Accepting the same, by judgment and order dated 30.04.2010,....

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....fresh block assessment order. However, it is required to be noted that in the meantime the order of remand dated 17.11.2006 passed in IT(SS) A No.18/AHD/2000 came to be recalled and the appeal no. IT(SS) A No.18/AHD/2000 was restored to file. Under the circumstances, when the remand order itself was recalled by the learned Tribunal, as rightly held by learned Tribunal that the subsequent block assessment order was without jurisdiction. Under the circumstances, the learned Tribunal is justified in allowing the said appeal and quashing and setting aside the subsequent block assessment order. Under the circumstances, we see no reasons to interfere with the subsequent judgment and order dated 30.04.2010 passed in passed in IT(SS) A No.37/AHD/2008 by quashing and setting aside the subsequent block assessment order. Under the circumstances, Tax Appeal No. 2397 of 2010 deserves to be dismissed and is accordingly dismissed by answering question in favour of assessee and against the revenue. 7.0. Now, so far as Tax Appeal No. 1002 of 2010 arising out of the impugned judgment and order dated 15.05.2009 passed by the learned Tribunal passed in IT(SS) A.No.18/AHD/2000 for the Block Period 1....

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....eld that even in a case where the satisfaction note is immediate i.e. belated the block assessment is required to be quashed and set aside. It is submitted that in the present case the satisfaction note was after a period of approximately one year and therefore, in the facts and circumstances of the case, the learned Tribunal has not committed any error in quashing and setting aside the block assessment under Section 158BC r.w.s 158BD. Making above submission and relying upon the above decision, it is requested to dismiss the present appeal. 9.0. Heard the learned counsel for the respective parties at length. 10. At the outset, it is required to be noted that by impugned judgment and order, the learned Tribunal has quashed and set aside block assessment under Section 158BC r.w.s 158BD of the Act on the ground that the satisfaction note in the case of assessee (other than searched person) was belated and after the assessment was completed in the case of searched person. The question which is posed for consideration of this Court is whether in the facts and circumstances of the case the learned Tribunal is justified in quashing and setting aside the block assessment under Se....

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.... of reasons in writing are a sine qua non. Under Section 158BD the existence of cogent and demonstrative material is germane to the assessing officers' satisfaction in concluding that the seized documents belong to a person other than the searched person is necessary for initiation of action under Section 158BD. The bare reading of the provision indicates that the satisfaction note could be prepared by the assessing officer either at the time of initiating proceedings for completion of assessment of a searched person under Section 158BC of the Act or during the stage of the assessment proceedings. It does not mean that after completion of the assessment, the assessing officer cannot prepare the satisfaction note to the effect that there exists income tax belonging to any person other than the searched person in respect of whom a search was made under Section 132 or requisition of books of accounts were made under Section 132A of the Act. The language of the provision is clear and unambiguous. The legislature has not imposed any embargo on the assessing officer in respect of the stage of proceedings during which the satisfaction is to be reached and recorded in respect of the person....

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....n 158BC of the Act; (b) along with the assessment proceedings under Section 158BC of the Act; and (c) immediately after the assessment proceedings are completed under Section 158BC of the Act of the searched person. 11.1. Therefore, as such the aforesaid question is now not resintegra. As observed by the Hon'ble Supreme Court in the case of Calcutta Knitwears (supra) satisfaction note can be after the assessment is completed in the case of searched person. Under the circumstances, the impugned judgment and order passed by the learned Tribunal quashing and setting aside the block assessment on the ground that satisfaction note in the case of assessee (other than searched person) was subsequent to the assessment framed in the case of searched person and therefore belated, cannot be sustained. 12. Now, so far as reliance placed upon the decision of the Delhi High Court in the case of Bharat Bhusan Jain (supra) is concerned, we do not agree with the view taken by the Delhi High Court. The Delhi High Court has considered para 44 of the decision of the Hon'ble Supreme Court in the case of Calcutta Knitwears (supra) and has observed and held that even in such case satisfacti....