2009 (9) TMI 28

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....nt. (ii) to issue a writ, order or direction in the nature of writ of mandamus restraining the respondent to proceed against the petitioner under section 158BD in pursuance of the notice dated 12-2-2002. 2. Writ Petition No.1607 of 2002 has been filed by the petitioner, inter alia for the following relief: "(i) to issue a writ, order or direction in the nature of writ of mandamus directing the respondent to release the seized books of account and documents as per Inventory annexed to the Panchanama (Annexure-1 to the writ petition) forthwith. 3. As the point involved and parties in these two writ petitions are one and same they are taken up together for disposal by this common judgement and order. 4. The petitioner is a regis....

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....e in respect of which the petitioner is assessable for the block period as defined in section 158 -B(a) of the Act. It has further been submitted that in the present case Section 158 BD of the Act is not applicable. 8. On the other hand learned counsel for the respondent has submitted that provisions of Section 158-BD has been rightly invoked by the department since no such search and seizure was conducted under section 132 of the Act at the business premises (shop) of the petitioner. Only survey was conducted at the business premises (shop) of the petitioner under section 133-A, however search and seizure under section 132 of the Act was conducted at the residence of partners of the petitioner's firm. 9. Heard Sri V.B.Upadhyaya, Seni....

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....closed income belongs to any person, other than the person with respect to whom search was made under section 132 or whose books of account or other documents or any assets were requisitioned under section 132-A, then the books of account, other documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed under Section 158BC against such other person and the provisions of this Chapter shall apply accordingly." 13. The aforesaid provision as contained in Section 158-BD of the Act clearly provides that for taking action under section 158BD the assessing authority is merely required to be satisfied with the books of account or ot....

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....hat by mere mentioning "search and seizure" in the Panchnama, will not convert the survey under section 133-A into "search and seizure" under section 132 of the Act. 15. Learned counsel for the respondent has placed reliance upon the decision in the case of Vinod Goel and others Vs. Union of India and others (2001) 252 ITR- 29 and has also relied upon the decision in the case of Premjibhai and sons Vs. Joint Commissioner of Income Tax, (2001) 251 ITR- 625 wherein it has been held that initiation of proceedings under section 158BD of the Act against another person is not a separate and independent proceeding for which a separate jurisdictional fact has to be established. The proceedings under section 158-BD against a person other than the....