TaxTMI 
TaxTMI 
2018 (4) TMI 1375
X X X X Extracts X X X X
X X X X Extracts X X X X
....T Act') to prepare and file a true and correct return of his total income including the undisclosed income in respect of which he was assessed for the block period 1989-90 to 1999-2000. On the very same day, a separate notice under Section 158BC was issued in the name of the said Firm by the very same Assessing Officer. Pursuant to the same, the Appellant filed his block return for the aforesaid period on 08.11.1999 declaring his aggregate undisclosed income at Rs. 14 lakhs. (c) Meanwhile, an application was filed by the Appellant before the Additional Commissioner of Income Tax, Asansol, praying for his intervention and issue of necessary direction to the Assessing Officer under Section 144A of the IT Act. On 14.08.2000, the Additional Commissioner perused the records and directed the Assessing Officer to take appropriate steps in order to determine the income of the assessee. The Additional Commissioner issued separate directions under Section 144A of the IT Act in the cases of M/s. Nitya Kali Rice Mill, Kartick Dutta, Shambhu Mondal and Tamal Mondal and the Draft Assessment Order under Section 158BC of the IT Act was sent to the Joint Commissioner of Income Tax, Burdwan, Range-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ior counsel for the respondent and perused the records. Point(s) for consideration:- 4) The only point for consideration before this Court is whether in the facts and circumstances of the present case, the issue of Second (Fresh) Notice under Section 158BD of the IT Act is valid or not? Rival contentions:- 5) Learned senior counsel for the appellant strenuously contended that the first notice issued under Section 158BC of the IT Act dated 09.09.1999 is the valid notice and the assessment has to be made in pursuance thereof and the AO has no authority to issue the second notice under Section 158BD. Learned senior counsel further contended that the Firm as well as the Appellant were assessed by the same Assessing Officer wherein Section 158BD has no application because it applies only in the case where the Assessing Officer assessing the Firm as well as the Appellant is different. The Assessing Officer rightly issued the notice under Section 158BC both upon the Firm as well as upon the Appellant which resulted in the draft assessment and the proceedings on the basis of the notice under Section 158BD are not valid. Learned senior counsel finally contended that the purported procee....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... other person and that Assessing Officer shall proceed under section 158BC against such other person and the provisions of this Chapter shall apply accordingly." It can be seen that notice under Section 158BD can be issued to a person with respect to whom search was not conducted but undisclosed income was found as belonging to such person from the material seized from the residence or business premises of the person with respect to whom search was made under Section 132. Section 158BD speaks of the condition that "where the Assessing Officer is satisfied that any undisclosed income belongs to any person other than the searched person", which means that the Assessing Officer must have to be satisfied that any undisclosed income belongs to any person other than the searched person. In the present case, it is not in dispute that the Assessing Officer, who is assessing the Firm as well as the Appellant, is the same person. In other words, the same Assessing Officer having jurisdiction over the searched person can proceed against the present Appellant. Therefore, the present Assessing Officer had jurisdiction to proceed against the present Appellant to make a block assessment under Ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e IT Act. Since the notice under Section 158BC issued to M/s Nitya Kali Rice Mill and the notice under Section 158BC issued to the Appellant were on the same day i.e., on 09.09.1999, the question of coming to a satisfaction that any undisclosed income based on seized books of accounts or documents or assets belonged to the present Appellant did or could not arise inasmuch as no reasonable or prudent man can come to such satisfaction unless the seized books of accounts or documents or assets are perused, examined and verified. Therefore, the Assessing Officer was right in arriving at a decision that the notice under Section 158BC issued to the present Appellant on 09.09.1999 did not satisfy the requirement of Section 158BD of the IT Act. He, therefore, rightly proceeded to issue fresh notice (Second Notice) under Section 158BD on 20.11.2000 after recording a satisfaction that any undisclosed income based on seized books of account or document or assets or other materials may belong to the Appellant. In fact, in the present case, the AO has himself come to a conclusion that the notice issued under Section 158BC on 09.09.1999 to the assessee was not in conformity with the requirement ....