I-T - Whether recording of satisfaction of AO of searched person is a condition precedent for AO of third person to initiate block assessment if any part of undisclosed income was said to have belonged to third person - YES: Delhi HC
NEW DELHI, JUNE 01, 2011: THE issues before the High Court are - Whether recording of satisfaction by the AO of the searched person is a condition precedent for the AO of third person to initiate block assessment u/s 158BC if any part of undisclosed income of the assessee was said to have belonged to the third party - Whether mere use or mention of the word 'satisfaction' in the order/note of the AO of the searched person can be said to meet the requirement of concept of satisfaction as used in Section 158BD. And the verdict goes against the Revenue.
Facts of the case
There was a search u/s 132 of the Act in the premises of one Manoj Aggarwal of Baldev Park, Delhi on 30.8.2000. In the course of the search, several materials were seized on the basis of which a block assessment was completed in the case of Manoj Aggarwal u/s 158BC of the Act on 29.8.2002. On 15.7.2003, a letter was sent by the AO of Manoj Aggarwal to the AO of the respondent – assessee, namely, Radhey Shyam Bansal to the effect that the said assessee was acting as a mediator in transactions involving substantial tax evasion by giving bogus accommodation entries to various persons.
After receipt of the communication from the AO of Manoj Aggarwal, the AO of the respondent sent a notice on 22.3.2004 purportedly u/s 158B of the Act. The respondent was called upon to file a block return within 30 days of the receipt of the notice. The respondent filed the requisite return for the period from the assessment year 1991-92 to the assessment year 2001-02 (upto the 30.8.2000, the date of search) in the prescribed form declaring the income at Rs. Nil as undisclosed income. The AO framed an order of assessment and determined that there was undisclosed income earned by way of commission of Rs.50,85,315/-. In addition, he also included Rs.9,81,29,575/- as unexplained investment u/s 69 of the Act on protective basis on the footing that the assessee had paid cash to Manoj Aggarwal.
Being dissatisfied with the order of assessment, the respondent preferred an appeal before CIT (Appeals) putting forth number of contentions including the submission that the notice u/s 158B was barred by limitation; that the AO assessing the searched person (Manoj Aggarwal) had not recorded any satisfaction u/s 158BD; that no opportunity to cross-examine the person on the basis of whose statement allegations were made against him; that no opportunity was afforded to him to rebut the material collected and utilized against him; and that the rate of commission adopted by the AO was totally exaggerated and not based on any material evidence on record.
The CIT (A) did not accept the contentions of the respondent – assessee that no satisfaction was recorded by the AO in the case of the searched person. The CIT(A) took note of the fact that the AO assessing Manoj Aggarwal had communicated vide letter dated 15.7.2003 to the AO having jurisdiction over the assessee, in which he had mentioned that the diaries seized from the possession of Manoj Aggarwal which established that the assessee Radhey Shyam Bansal was a mediator who had provided book entries to various beneficiaries; and that there was evidence of cash amounts were received by Manoj Aggawal from Radhey Shyam Bansal. On the aforesaid basis, the CIT(A) came to the conclusion that the communication dated 15.7.2003 amounted to the satisfaction of the AO assessing the searched person as required by Section 158BD. Be it noted, the other contentions raised by the respondent were also negatived.
Grieved by the aforesaid order of the CIT(A), the respondent – assessee approached the tribunal and it was urged that the notice u/s 158BD was not issued within a reasonable period of time inasmuch as a period of nearly 19 months had elapsed from the date of completion of block assessment of Manoj Aggarwal before the notice u/s 158BD issued; that no satisfaction was recorded by the AO assessing Manoj Aggarwal as required u/s 158BD of the Act; that the letter dated 15.7.2003 written by the said AO to the AO having jurisdiction over the respondent -assessee was written much after the block assessment was completed in the case of Manoj Aggarwal, which was against the statutory provision and in any case, no satisfaction was discernible from the said letter; that the order of assessment was vitiated being violative of principle of natural justice since the AO had collected material behind the back of the assessee without confronting the assessee with the same for rebuttal; and that the order of assessment had travelled beyond the seized materials.
The aforesaid contentions of the assessee-respondent before the tribunal was resisted by the revenue contending, inter alia, the recording of satisfaction was in accord with the stipulations enshrined in Section 158BD of the Act; that the initiation of the proceeding was done within a reasonable period of time; that the principles of natural justice had been religiously followed; and that the order of assessment did not suffer from any infirmity.
The tribunal, considering the contentions of the counsel for the parties and upon scrutiny of the documents brought on record, posed the question whether recording of satisfaction by the AO assessing the person searched u/s 132 of the Act that any undisclosed income belongs to any person other than the searched person is mandatory or not. The tribunal relying on the decision in Manish Maheshwari v. Assistant Commissioner of Income Tax & anr, came to hold that no satisfaction had been recorded by the AO assessing Manoj Aggarwal, as there is no reflection of satisfaction in the order of assessment, and further the notice dated 22.3.2004 issued u/s 158BC read with Section 158BD did not refer to any satisfaction of the AO of Manoj Aggarwal. It is noteworthy that the tribunal referred to the satisfaction note dated 22.3.2004 which is a note recorded by the AO of the assessee – respondent but not that of the AO of Manoj Aggarwal who is the searched person. The tribunal also referred to the letter dated 15.7.2003 written by DCIT Central, New Delhi the AO having jurisdiction on Manoj Aggarwal to the AO of the respondent-assessee and came to hold that the AO of Manoj Aggarwal could not have made such a communication after the assessment of the person searched was completed. Be it noted, to arrive at the said conclusion the tribunal placed reliance on the decision rendered by the Co-ordinate Bench at Chandigarh in the case of ACIT, Yamunanagar vs. Kishore Lal Balwant Rai, Jagdhari decided on 29.6.2007. In the view of the tribunal, the AO of Manoj Aggarwal had become functus officio on passing the assessment order and hence, could not have recorded any satisfaction. After so holding, the tribunal proceeded to enquire whether the notice u/s 158B required to be issued within a reasonable time and there was delay rendering the whole proceeding vulnerable in law. The tribunal took note of the fact that the block assessment of Manoj Aggarwal was completed on 29.8.2002 but the notice to the respondent-assessee u/s 158BD was issued only on 22.3.2004, i.e., after 19 months later. The tribunal placing reliance on the decision in Khandubhai Vasanji Desai and others v. DCIT came to hold that notice was issued well beyond a reasonable period.
On appeal by the revenue, the High Court held that,
++ on a perusal of the juridical pronouncements, it is graphically clear that the recording of satisfaction by the AO of the searched person is a condition precedent. Satisfaction must be recorded by the said AO that any undisclosed income belongs to any person, other than the person searched. Thereafter the AO of the third person can proceed against his assessee u/s 158BC. The documents, books of accounts or assets seized or requisitioned have to be handed over to the AO of the third person;
++ once, it is held that the recording of satisfaction is a condition precedent, it is to be seen whether any such satisfaction of the AO of Manoj Aggarwal is perceivable from the record;
++ on a perusal of the order of assessment framed against the Manoj Aggarwal, no satisfaction is perceived by the AO of Manoj Aggarwal that any undisclosed income belongs to the respondent assessee. The said satisfaction is not reflected or stated in the said order;
++ the letter of communication dated 15.7.2003 sent by the AO of Manoj Aggarwal to the AO of the respondent – assessee indicates that a communication was made by the AO of Manoj Aggarwal to the AO assessing the respondent-assessee to the effect that the assessee was acting as a mediator in the transactions involving substantial tax evasion by giving bogus accommodation entries to various persons. It is submitted by counsel for the assessee that the said letter does not remotely suggest any satisfaction. In fact the revenue has also not treated this letter as recording of satisfaction, but the letter is a mere communication;
++ on a plain reading of the provision of section 158BD, it is vivid that for the purpose of initiation of block assessment proceeding against a third person in respect of whom search has not been conducted certain conditions precedents are to be followed and they are mandatory. They have to be construed and complied absolutely strictly. The first pre-condition as the provision envisages is that the AO of the person searched has to be satisfied that some undisclosed income belongs to a third person. Thus, the relevant expressions pertaining to condition precedent are 'undisclosed income' and 'which belongs to a person other than the person searched';
++ the "undisclosed income" defined in section 158B is on a broad canvass. It not only includes income which has not been disclosed but income which would not have been disclosed by a third person. It must be income and can be money, bullion, jewellery or valuable articles or thing which has not been disclosed by the third person and would not have been disclosed by the third person under the Act. It can include entry in the books of account or document or transaction which represents wholly or partly income or profit which has not been disclosed or would not have been disclosed under the Act by the third person. After amendment of Section 158B(b) by Finance Act 2002 with retrospective effect from 1st July, 1995, it can also include an expense, deduction or allowance which is found to be false;
++ the word 'satisfaction' has not been defined in the Act. The 'satisfaction' by its very nature must precede before the papers/documents are sent by the AO of the person searched to the AO of the third person. Mere use or mention of the word 'satisfaction' in the order/note will not meet the requirement of concept of satisfaction as used in Section 158BD. The satisfaction has to be in writing and can be gathered from the assessment order, if it is so mentioned/ recorded, or from any other order, note or record maintained by the AO of the person searched. The word 'satisfaction' refers to the state of mind of the AO of the person searched, which gets reflected in a tangible shape/form when it is reduced into writing. It is the conclusion drawn or the finding recorded on the foundation of the material available. The word 'satisfied' occurs in many a statute and has its connotation. The term 'is satisfied' means simply makes up its mind;
++ the AO is satisfied when he makes his mind or reaches a clear conclusion when he takes a prima facie view that the material available establishes 'undisclosed income' of a third party. AO must reach a clear conclusion that good ground exists for the AO of the third person to initiate proceedings as material before him shows or would establish 'undisclosed income' of a third person. At this stage, as the proceedings are at the very initial state, the 'satisfaction' neither is required to be firm or conclusive. The 'satisfaction' required is to decide whether or not block assessment proceedings are required to be initiated. But 'satisfaction' has to be founded on reasonableness. It cannot be capricious satisfaction. Though, it is a subjective satisfaction, it must be capable of being tested on objective parameters. The opinion though tentative, however, cannot be a product of imagination or speculation. It cannot be spacious or mercurial. It should not be a mere pretence and should be made in good faith rather than suspicion. Reliability, credibility or for that matter what weight has to be attached to the material, depends upon the subjective satisfaction of the AO but definitely it is subject to scrutiny whether the satisfaction has a rational nexus or a relevant bearing to the formation of satisfaction and is not extraneous or irrelevant. The satisfaction must reflect rational connection with or relevant bearing between the material available and undisclosed income of the third person. The rational connection postulates and requires satisfaction of the AO that a third person has 'undisclosed income' on the basis of evidence or material before him. The material itself should not be vague, indefinite, distinct or remote. If there is no rational or intangible nexus between the material and the satisfaction that a third person has 'undisclosed income', the conclusion would not deserve acceptation. Then the satisfaction is vitiated. It is to this limited extent that the satisfaction can be gone into and examined. The satisfaction though subjective, must meet the aforesaid criteria;
++ in view of the aforesaid legal position, the letter dated 15th July, 2003 which was communicated by the AO of the searched assessee to the AO of the respondent is now to be examined. The question is whether the aforesaid letter can be regarded as 'satisfaction' as required u/s 158BD, i.e. satisfaction of the AO of Manoj Aggarwal that there is material that the respondent assessee had undisclosed income. The first paragraph of the aforesaid letter states that the diary seized from the possession of Manoj Aggarwal establishes that the respondent assessee had acted as a mediator for providing accommodation book entries by Manoj Aggarwal. The second sentence in the first paragraph states that the quantum of transactions as shown in the documents were enclosed as Annexure-A and the photocopies of the papers were enclosed as Annexure-B. The second paragraph states that there was evidence that cash was received by Manoj Aggarwal from the respondent and the summary of the amounts received as per the seized documents was given in Annexure C and the photocopies of the documents were annexed as Annexure-D. It is accepted that Annexures A, B, C & D, referred to in this letter were not filed before the tribunal and have not been produced before the court. It is conceded by the counsel for the revenue that they are also not available on the file of the AO of the respondent. There is no explanation forthcoming with regard to the aforesaid annexures. It is well nigh impossible to know their content;
++ the first paragraph of the letter dated 15th July, 2003 states that the respondent-assessee had acted as a mediator i.e. they had introduced Manoj Aggarwal with other persons to whom accommodation book entries were provided by Manoj Aggarwal. There is no allegation in the first paragraph that the respondent assessee was provided with accommodation book entries or the amounts belong to the respondent assessee. Book entries were provided to third parties. It is not stated in this 'satisfaction note' that Manoj Aggarwal or third parties had paid any amount towards commission for acting as a mediator. There is no such allegation or statement in the 'satisfaction note'. The second paragraph does create some doubt but what is relevant and important is the fact that in the first paragraph, it is accepted by the AO of Manoj Aggarwal that the respondent assessee was merely acting as a mediator and nothing more. The second paragraph of the letter states that there was evidence that cash was received by Manoj Aggarwal from the respondent assessees. What was the evidence and material was not brought on record before the tribunal or even before us. The said material is not mentioned in the assessment order. It cannot be 'ipse dixit' without material or evidence to satisfy the concept of requirement as engrafted u/s 158BD. What was the material was neither highlighted before the tribunal nor before the court. Thus, the appellant-revenue has not discharged the onus that there was valid satisfaction as required u/s 158 BD. Therefore, the irresistible conclusion is the pre-requisite of 'satisfaction' as engrafted u/s 158B for the purpose of initiation of block assessment proceeding is non-existent or absent;
++ in view of the aforesaid analysis, there is no substantial question of law involved in the present batch of appeals, however, conclusion of the tribunal that the forming of an opinion has to be along with the framing of assessment inasmuch as the AO after said date becomes functus officio is kept open to be addressed in an appeal where the said issue is required to be dealt with.
NEW DELHI, JUNE 01, 2011: THE issues before the High Court are - Whether recording of satisfaction by the AO of the searched person is a condition precedent for the AO of third person to initiate block assessment u/s 158BC if any part of undisclosed income of the assessee was said to have belonged to the third party - Whether mere use or mention of the word 'satisfaction' in the order/note of the AO of the searched person can be said to meet the requirement of concept of satisfaction as used in Section 158BD. And the verdict goes against the Revenue.
Facts of the case
There was a search u/s 132 of the Act in the premises of one Manoj Aggarwal of Baldev Park, Delhi on 30.8.2000. In the course of the search, several materials were seized on the basis of which a block assessment was completed in the case of Manoj Aggarwal u/s 158BC of the Act on 29.8.2002. On 15.7.2003, a letter was sent by the AO of Manoj Aggarwal to the AO of the respondent – assessee, namely, Radhey Shyam Bansal to the effect that the said assessee was acting as a mediator in transactions involving substantial tax evasion by giving bogus accommodation entries to various persons.
After receipt of the communication from the AO of Manoj Aggarwal, the AO of the respondent sent a notice on 22.3.2004 purportedly u/s 158B of the Act. The respondent was called upon to file a block return within 30 days of the receipt of the notice. The respondent filed the requisite return for the period from the assessment year 1991-92 to the assessment year 2001-02 (upto the 30.8.2000, the date of search) in the prescribed form declaring the income at Rs. Nil as undisclosed income. The AO framed an order of assessment and determined that there was undisclosed income earned by way of commission of Rs.50,85,315/-. In addition, he also included Rs.9,81,29,575/- as unexplained investment u/s 69 of the Act on protective basis on the footing that the assessee had paid cash to Manoj Aggarwal.
Being dissatisfied with the order of assessment, the respondent preferred an appeal before CIT (Appeals) putting forth number of contentions including the submission that the notice u/s 158B was barred by limitation; that the AO assessing the searched person (Manoj Aggarwal) had not recorded any satisfaction u/s 158BD; that no opportunity to cross-examine the person on the basis of whose statement allegations were made against him; that no opportunity was afforded to him to rebut the material collected and utilized against him; and that the rate of commission adopted by the AO was totally exaggerated and not based on any material evidence on record.
The CIT (A) did not accept the contentions of the respondent – assessee that no satisfaction was recorded by the AO in the case of the searched person. The CIT(A) took note of the fact that the AO assessing Manoj Aggarwal had communicated vide letter dated 15.7.2003 to the AO having jurisdiction over the assessee, in which he had mentioned that the diaries seized from the possession of Manoj Aggarwal which established that the assessee Radhey Shyam Bansal was a mediator who had provided book entries to various beneficiaries; and that there was evidence of cash amounts were received by Manoj Aggawal from Radhey Shyam Bansal. On the aforesaid basis, the CIT(A) came to the conclusion that the communication dated 15.7.2003 amounted to the satisfaction of the AO assessing the searched person as required by Section 158BD. Be it noted, the other contentions raised by the respondent were also negatived.
Grieved by the aforesaid order of the CIT(A), the respondent – assessee approached the tribunal and it was urged that the notice u/s 158BD was not issued within a reasonable period of time inasmuch as a period of nearly 19 months had elapsed from the date of completion of block assessment of Manoj Aggarwal before the notice u/s 158BD issued; that no satisfaction was recorded by the AO assessing Manoj Aggarwal as required u/s 158BD of the Act; that the letter dated 15.7.2003 written by the said AO to the AO having jurisdiction over the respondent -assessee was written much after the block assessment was completed in the case of Manoj Aggarwal, which was against the statutory provision and in any case, no satisfaction was discernible from the said letter; that the order of assessment was vitiated being violative of principle of natural justice since the AO had collected material behind the back of the assessee without confronting the assessee with the same for rebuttal; and that the order of assessment had travelled beyond the seized materials.
The aforesaid contentions of the assessee-respondent before the tribunal was resisted by the revenue contending, inter alia, the recording of satisfaction was in accord with the stipulations enshrined in Section 158BD of the Act; that the initiation of the proceeding was done within a reasonable period of time; that the principles of natural justice had been religiously followed; and that the order of assessment did not suffer from any infirmity.
The tribunal, considering the contentions of the counsel for the parties and upon scrutiny of the documents brought on record, posed the question whether recording of satisfaction by the AO assessing the person searched u/s 132 of the Act that any undisclosed income belongs to any person other than the searched person is mandatory or not. The tribunal relying on the decision in Manish Maheshwari v. Assistant Commissioner of Income Tax & anr, came to hold that no satisfaction had been recorded by the AO assessing Manoj Aggarwal, as there is no reflection of satisfaction in the order of assessment, and further the notice dated 22.3.2004 issued u/s 158BC read with Section 158BD did not refer to any satisfaction of the AO of Manoj Aggarwal. It is noteworthy that the tribunal referred to the satisfaction note dated 22.3.2004 which is a note recorded by the AO of the assessee – respondent but not that of the AO of Manoj Aggarwal who is the searched person. The tribunal also referred to the letter dated 15.7.2003 written by DCIT Central, New Delhi the AO having jurisdiction on Manoj Aggarwal to the AO of the respondent-assessee and came to hold that the AO of Manoj Aggarwal could not have made such a communication after the assessment of the person searched was completed. Be it noted, to arrive at the said conclusion the tribunal placed reliance on the decision rendered by the Co-ordinate Bench at Chandigarh in the case of ACIT, Yamunanagar vs. Kishore Lal Balwant Rai, Jagdhari decided on 29.6.2007. In the view of the tribunal, the AO of Manoj Aggarwal had become functus officio on passing the assessment order and hence, could not have recorded any satisfaction. After so holding, the tribunal proceeded to enquire whether the notice u/s 158B required to be issued within a reasonable time and there was delay rendering the whole proceeding vulnerable in law. The tribunal took note of the fact that the block assessment of Manoj Aggarwal was completed on 29.8.2002 but the notice to the respondent-assessee u/s 158BD was issued only on 22.3.2004, i.e., after 19 months later. The tribunal placing reliance on the decision in Khandubhai Vasanji Desai and others v. DCIT came to hold that notice was issued well beyond a reasonable period.
On appeal by the revenue, the High Court held that,
++ on a perusal of the juridical pronouncements, it is graphically clear that the recording of satisfaction by the AO of the searched person is a condition precedent. Satisfaction must be recorded by the said AO that any undisclosed income belongs to any person, other than the person searched. Thereafter the AO of the third person can proceed against his assessee u/s 158BC. The documents, books of accounts or assets seized or requisitioned have to be handed over to the AO of the third person;
++ once, it is held that the recording of satisfaction is a condition precedent, it is to be seen whether any such satisfaction of the AO of Manoj Aggarwal is perceivable from the record;
++ on a perusal of the order of assessment framed against the Manoj Aggarwal, no satisfaction is perceived by the AO of Manoj Aggarwal that any undisclosed income belongs to the respondent assessee. The said satisfaction is not reflected or stated in the said order;
++ the letter of communication dated 15.7.2003 sent by the AO of Manoj Aggarwal to the AO of the respondent – assessee indicates that a communication was made by the AO of Manoj Aggarwal to the AO assessing the respondent-assessee to the effect that the assessee was acting as a mediator in the transactions involving substantial tax evasion by giving bogus accommodation entries to various persons. It is submitted by counsel for the assessee that the said letter does not remotely suggest any satisfaction. In fact the revenue has also not treated this letter as recording of satisfaction, but the letter is a mere communication;
++ on a plain reading of the provision of section 158BD, it is vivid that for the purpose of initiation of block assessment proceeding against a third person in respect of whom search has not been conducted certain conditions precedents are to be followed and they are mandatory. They have to be construed and complied absolutely strictly. The first pre-condition as the provision envisages is that the AO of the person searched has to be satisfied that some undisclosed income belongs to a third person. Thus, the relevant expressions pertaining to condition precedent are 'undisclosed income' and 'which belongs to a person other than the person searched';
++ the "undisclosed income" defined in section 158B is on a broad canvass. It not only includes income which has not been disclosed but income which would not have been disclosed by a third person. It must be income and can be money, bullion, jewellery or valuable articles or thing which has not been disclosed by the third person and would not have been disclosed by the third person under the Act. It can include entry in the books of account or document or transaction which represents wholly or partly income or profit which has not been disclosed or would not have been disclosed under the Act by the third person. After amendment of Section 158B(b) by Finance Act 2002 with retrospective effect from 1st July, 1995, it can also include an expense, deduction or allowance which is found to be false;
++ the word 'satisfaction' has not been defined in the Act. The 'satisfaction' by its very nature must precede before the papers/documents are sent by the AO of the person searched to the AO of the third person. Mere use or mention of the word 'satisfaction' in the order/note will not meet the requirement of concept of satisfaction as used in Section 158BD. The satisfaction has to be in writing and can be gathered from the assessment order, if it is so mentioned/ recorded, or from any other order, note or record maintained by the AO of the person searched. The word 'satisfaction' refers to the state of mind of the AO of the person searched, which gets reflected in a tangible shape/form when it is reduced into writing. It is the conclusion drawn or the finding recorded on the foundation of the material available. The word 'satisfied' occurs in many a statute and has its connotation. The term 'is satisfied' means simply makes up its mind;
++ the AO is satisfied when he makes his mind or reaches a clear conclusion when he takes a prima facie view that the material available establishes 'undisclosed income' of a third party. AO must reach a clear conclusion that good ground exists for the AO of the third person to initiate proceedings as material before him shows or would establish 'undisclosed income' of a third person. At this stage, as the proceedings are at the very initial state, the 'satisfaction' neither is required to be firm or conclusive. The 'satisfaction' required is to decide whether or not block assessment proceedings are required to be initiated. But 'satisfaction' has to be founded on reasonableness. It cannot be capricious satisfaction. Though, it is a subjective satisfaction, it must be capable of being tested on objective parameters. The opinion though tentative, however, cannot be a product of imagination or speculation. It cannot be spacious or mercurial. It should not be a mere pretence and should be made in good faith rather than suspicion. Reliability, credibility or for that matter what weight has to be attached to the material, depends upon the subjective satisfaction of the AO but definitely it is subject to scrutiny whether the satisfaction has a rational nexus or a relevant bearing to the formation of satisfaction and is not extraneous or irrelevant. The satisfaction must reflect rational connection with or relevant bearing between the material available and undisclosed income of the third person. The rational connection postulates and requires satisfaction of the AO that a third person has 'undisclosed income' on the basis of evidence or material before him. The material itself should not be vague, indefinite, distinct or remote. If there is no rational or intangible nexus between the material and the satisfaction that a third person has 'undisclosed income', the conclusion would not deserve acceptation. Then the satisfaction is vitiated. It is to this limited extent that the satisfaction can be gone into and examined. The satisfaction though subjective, must meet the aforesaid criteria;
++ in view of the aforesaid legal position, the letter dated 15th July, 2003 which was communicated by the AO of the searched assessee to the AO of the respondent is now to be examined. The question is whether the aforesaid letter can be regarded as 'satisfaction' as required u/s 158BD, i.e. satisfaction of the AO of Manoj Aggarwal that there is material that the respondent assessee had undisclosed income. The first paragraph of the aforesaid letter states that the diary seized from the possession of Manoj Aggarwal establishes that the respondent assessee had acted as a mediator for providing accommodation book entries by Manoj Aggarwal. The second sentence in the first paragraph states that the quantum of transactions as shown in the documents were enclosed as Annexure-A and the photocopies of the papers were enclosed as Annexure-B. The second paragraph states that there was evidence that cash was received by Manoj Aggarwal from the respondent and the summary of the amounts received as per the seized documents was given in Annexure C and the photocopies of the documents were annexed as Annexure-D. It is accepted that Annexures A, B, C & D, referred to in this letter were not filed before the tribunal and have not been produced before the court. It is conceded by the counsel for the revenue that they are also not available on the file of the AO of the respondent. There is no explanation forthcoming with regard to the aforesaid annexures. It is well nigh impossible to know their content;
++ the first paragraph of the letter dated 15th July, 2003 states that the respondent-assessee had acted as a mediator i.e. they had introduced Manoj Aggarwal with other persons to whom accommodation book entries were provided by Manoj Aggarwal. There is no allegation in the first paragraph that the respondent assessee was provided with accommodation book entries or the amounts belong to the respondent assessee. Book entries were provided to third parties. It is not stated in this 'satisfaction note' that Manoj Aggarwal or third parties had paid any amount towards commission for acting as a mediator. There is no such allegation or statement in the 'satisfaction note'. The second paragraph does create some doubt but what is relevant and important is the fact that in the first paragraph, it is accepted by the AO of Manoj Aggarwal that the respondent assessee was merely acting as a mediator and nothing more. The second paragraph of the letter states that there was evidence that cash was received by Manoj Aggarwal from the respondent assessees. What was the evidence and material was not brought on record before the tribunal or even before us. The said material is not mentioned in the assessment order. It cannot be 'ipse dixit' without material or evidence to satisfy the concept of requirement as engrafted u/s 158BD. What was the material was neither highlighted before the tribunal nor before the court. Thus, the appellant-revenue has not discharged the onus that there was valid satisfaction as required u/s 158 BD. Therefore, the irresistible conclusion is the pre-requisite of 'satisfaction' as engrafted u/s 158B for the purpose of initiation of block assessment proceeding is non-existent or absent;
++ in view of the aforesaid analysis, there is no substantial question of law involved in the present batch of appeals, however, conclusion of the tribunal that the forming of an opinion has to be along with the framing of assessment inasmuch as the AO after said date becomes functus officio is kept open to be addressed in an appeal where the said issue is required to be dealt with.
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