ASST CIT 18(2), V. GYAN CONSTRUCTION CO.,

MA 394/MUM/2011

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2568 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 17-01-2014
• Assessment Year: misc
• Appeal Filed On: 18-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DR K SHIVRAM; AJAY R SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI . . , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./MA NOS. 394/MUM/2011 & 341/MUM/2013 (ARISING OUT OF IT(SS)A NOS. 174/MUM/2004 & IT(SS)A NO. 19/MUM/2007) (BLOCK PERIOD: 01.04.1988 TO 17.12.1998) ASST. CIT-18(2), ROOM NO. 115, 1 ST FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400 012 / VS. GYAN CONSTRUCTION CO., 136, MADHUBEN ESTRATE, 542, S. B. MARG, DADAR (W), MUMBAI-400 028 ' ./# ./PAN/GIR NO. AAAFG 0850 E APPLICANT : RESPONDENT APPLICANT BY : SHRI SUNIL KUMAR AGARWAL RESPONDENT BY : DR. K. SHIVRAM & SHRI AJAY R. SINGH $ % & '( / DATE OF HEARING : 19.09.2014 )*+ & '( / DATE OF PRONOUNCEMENT : 17.10.2014 , / O R D E R PER SANJAY ARORA, A. M.: THIS IS A SET OF TWO MISCELLANEOUS PETITIONS BY THE REVENUE U/S. 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) IN RES PECT OF THE ORDER U/S. 254(1) DATED 29.12.2010 BY THE APPELLATE TRIBUNAL, DISMISSING IT S APPEALS ARISING OUT OF THE ASSESSEES ASSESSMENT U/S.158BD FOR THE BLOCK PERIOD 01.04.198 8 TO 17.12.1988 AND THE PENALTY ORDER U/S.158BFA QUA THE SAID ASSESSMENT. 2 MA NOS. 394/MUM/2011 & 341/MUM/2013 (B. P. 01.04.88 TO 17.12.98) ASST. CIT VS. GYAN CONSTRUCTION CO. 2. IT WOULD BE RELEVANT TO RECOUNT THE BACKGROUND F ACTS OF THE CASE. ASSESSMENT IN THE INSTANT CASE WAS FRAMED IN THE FIRST INSTANCE U/S. 158BC BY THE ASSTT. CIT (INVESTIGATION), CIRCLE 9(1), MUMBAI ON 29.12.2000 PURSUANT TO A NOTICE U/S.158BC DATED 30.08.2000, CONSEQUENT TO A SEARCH CARRIED OUT ON 17.12.1998 AN D 18.12.1998 AT THE OFFICE PREMISES OF R. K. MADHANI & CO. AND OTHER GROUP CASES. THE MATT ER TRAVELLED TO THE TRIBUNAL, WHICH VIDE ITS ORDER DATED 28.11.2008 (IN IT(SS) A NO. 23 8/MUM/2001), ANNULLED THE ASSESSMENT ON THE SHORT LEGAL GROUND THAT THE ASSES SEE BEING NOT THE PERSON SEARCHED, NO ASSESSMENT U/S.158BC(C) COULD BE MADE THEREON. THE TRIBUNAL HAVING IN FACT UPHELD THE ORDER BY THE FIRST APPELLATE AUTHORITY DATED 30.05. 2001, THE REVENUE PROCEEDED AGAINST THE ASSESSEE BY THE ISSUE OF NOTICE U/S.158BD ON 30.07. 2001, FINALIZING THE ASSESSMENT THERE- UNDER ON 28.07.2003 AT RS.77.67 LACS, I.E., THE SUM AT WHICH THE ASSESSMENT WAS INITIALLY MADE U/S.158BC. PENALTY ORDER U/S. 158BFA(2) WAS AL SO PASSED ON 31.03.2005. THE COMMISSIONER OF INCOME TAX APPEALSXVIII, MUMBAI ( CIT(A) FOR SHORT) ALLOWED PARTIAL RELIEF TO THE ASSESSEE-APPELLANT, BOTH QUA THE ASSESSMENT AS WELL AS THE PENALTY LEVIED U/S.158BFA. THE REVENUE CARRIED THE MATTER I N APPEAL AGAINST THE SAID RELIEF ALLOWED BY THE LD. CIT(A), I.E., ON BOTH QUANTUM (I N IT(SS)A NO. 174/MUM/2004) AND PENALTY (IN IT(SS)A NO. 19/MUM/2007), WHICH STOOD D ISPOSED BY THE TRIBUNAL BY A COMBINED ORDER DATED 29.12.2010, WHICH STANDS IMPUG NED VIDE THE INSTANT APPLICATIONS. 3.1 THE BASIS OF THE REVENUES APPLICATION/S IS THA T THE ASST. CIT, CIRCLE 25(3), MUMBAI, THE ASSESSING OFFICER (A.O.) OF M/S. R. K. MADHANI AND CO., THE PERSON SEARCHED, VIDE HIS OFFICE LETTER BEARING NUMBER ACI T, CIR. 25(3)/APPRA/2000-01 DATED 21.08.2000 (COPY ENCLOSED AS ANNEXURE TO BOTH THE APPLICATION S) ADDRESSED TO THE ASST. CIT, CIRCLE 9(3), MUMBAI, THE THEN A.O. OF THE ASSE SSEE, INFORMED THE LATTER OF THE DISCLOSURE U/S.132(4) IN RESPECT OF, INTER ALIA , THE ASSESSEE, IN THE COURSE OF THE SEARCH U/S.132 ON M/S. R. K. MADHANI & CO. ON DECEMBER 17 & 18, 1998 AND, FURTHER, REQUESTED HIM TO TAKE NECESSARY ACTION UNDER THE ACT, ALSO EN CLOSING ALONG WITH THE COPY OF THE STATEMENT U/S.132(4), THE WARRANT OF AUTHORIZATION AND THE APPRAISAL REPORT. THERE WAS THUS CLEARLY RECORDING OF A SATISFACTION BY THE A.O . OF THE PERSON SEARCHED, M/S. R. K. 3 MA NOS. 394/MUM/2011 & 341/MUM/2013 (B. P. 01.04.88 TO 17.12.98) ASST. CIT VS. GYAN CONSTRUCTION CO. MADHANI AND CO., QUA THE UNDISCLOSED INCOME OF THE ASSESSEE AND, FURTHER , DURING THE COURSE OF THE ASSESSMENT U/S.158BC, AND DUE CONVEYA NCE THEREOF, ALONG WITH THE RELEVANT MATERIALS, TO THE A.O. OF THE ASSESSEE, I.E., A PER SON OTHER THAN THE PERSON SEARCHED. THE TRIBUNAL, HOWEVER, QUASHED THE ASSESSMENT VIDE THE IMPUGNED ORDER ON THE GROUND THAT NO SUCH EXERCISE HAD BEEN CARRIED OUT . THE ASSESSMENT HAVING BEEN QUASHED, PENALTY ALSO WOULD NOT SURVIVE. ACCORDINGLY, BOTH THE REVENUES APPEALS WERE DISMISSED AS INFRUCTUOUS. THE TRIBUNALS FINDING VIDE PARA 9, AN D CONSEQUENTIALLY VIDE PARA 13 OF ITS ORDER, ARE THUS CLEARLY INCORRECT IN VIEW OF THE LE TTER DATED 21.08.2000 BY THE A.O. OF THE PERSON SEARCHED. RECTIFICATION OF THE SAID MISTAKE IS ACCORDINGLY PRAYED FOR U/S. 254(2) OF THE ACT. 3.2 THE ASSESSEES CASE, RELYING ON THE DECISIONS I N THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. [1993] 203 ITR 497 (BOM) AND INDRAKUMAR PATODIA VS. ITO [2011] 51 DTR 183/238 CTR 437 (BOM), IS THAT THE PL EA BEING NOW ADOPTED BY THE REVENUE HAD BEEN DULY CONSIDERED BY THE TRIBUNAL, A ND WHICH THEREFORE CANNOT BE CONSIDERED NOW IN VIEW OF THE LIMITED SCOPE OF THE PROCEEDINGS U/S. 254(2), PRECLUDING REVIEW. REFERENCE TO THE LETTER DATED 27.01.2010 BY THE ASSESSEES THEN A.O. (ASST. CIT, CIRCLE 18(2), MUMBAI) ADDRESSED TO THE LD. CIT-DR, AS WELL AS THE ARGUMENTS ADVANCED BY BOTH THE SIDES, RECORDED AT PARAS 3 THROUGH 7 OF THE IMPUGNED ORDER, WAS MADE FOR THE PURPOSE. IT HAS ALSO SOUGHT TO PLACE A CHART SHOWIN G DATE-WISE SEQUENCE OF EVENTS ON RECORD, EVEN AS WITHOUT DOUBT ONLY THE MATERIAL ALREADY ON RECORD CAN BE TAKEN COGNIZANCE OF BY THE TRIBUNAL . RECORDING OF SATISFACTION IS A CONDITION PRECEDEN T FOR INITIATION OF PROCEEDINGS U/S.158BD, EVEN AS CLARIF IED BY THE APEX COURT IN MANISH MAHESHWARI ( INDORE CONSTRUCTION PVT. LTD. ) VS. CIT [2007] 289 ITR 341 (SC). A MERE INTIMATION COULD NOT BE REGARDED AS A SATISFACTION. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 4.1 AS EVIDENT FROM THE FOREGOING, THE REVENUE CLAI MS THAT THERE HAS BEEN DUE RECORDING OF SATISFACTION BY THE A.O. (OF THE PERSO N SEARCHED), COUPLED WITH ITS 4 MA NOS. 394/MUM/2011 & 341/MUM/2013 (B. P. 01.04.88 TO 17.12.98) ASST. CIT VS. GYAN CONSTRUCTION CO. CONVEYANCE, ALONG WITH THE RELEVANT MATERIAL, TO TH E ASSESSEES A.O., IN DUE COMPLIANCE OF THE PROCEDURE CONTEMPLATED U/S.158BD. THE TRIBUN ALS FINDING THAT IT IS NOT SO, WHICH FORMS THE BASIS OF ITS QUASHING THE ASSESSMENT AND, CONSEQUENTLY, THE PENALTY, IS THEREFORE FACTUALLY INCORRECT, NECESSITATING RECTIFICATION. T HE ASSESSEES CASE, ON THE OTHER HAND, IS THAT THE MATTER HAD BEEN DULY CONSIDERED BY THE TRI BUNAL. ITS CONSIDERATION AGAIN WOULD AMOUNT TO A REVIEW, WHICH IS IMPERMISSIBLE, AND WHI CH IS WHAT THE REVENUE SEEKS IN THE GARB OF RECTIFICATION. 4.2 THE RELEVANT FINDINGS BY THE TRIBUNAL ARE CONTA INED AT PARA 9 OF ITS IMPUGNED ORDER, WHICH READS THUS: 9. WE FIND THAT IT IS AN ADMITTED POSITION THAT NO .SA TISFACTION U/S.158BD WAS RECORDED IN THE PRESENT CASE , SO AS TO VEST JURISDICTION TO THE ASSESSING OFFICER TO FRAME THE IMPUGNED BLOCK ASSES SMENT. AS HELD BY THE SPECIAL BENCH IN THE CASE OF MANOJ AGARWAL V DCIT ( 113 ITD (SB) 477) ASSUMPTION OF JURISDICTION HAS TO BE PROCEEDED WITH RECORDING OF SATISFACTION AND SUCH A SATISFACTION IS TO BE RECOR DED DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S.158BC IN THE CASE OF PER SON SEARCHED. THE SATISFACTION TO PROCEED WITH THE ASSESSMENT U/S.158 BD HAS TO BE FRAMED IN THE PROCESS OF FINALIZING ASSESSMENT UNDER SECTION 158BC IN THE CASE OF PERSON SEARCHED, BUT ADMITTEDLY NO SUCH EXERCISE IS CARRIED OUT ON THE F ACTS OF THIS CASE . ON THE CONTRARY, RECORDS SHOW THAT NOTICE U/S.158BD WAS ISSUED MUCH AFTER ASSESSMENT U/S.158BC WAS FINALIZE D WHILE ASSESSMENT IN THE CASE OF R. K. MADAN & CO, THE ASSESSEE WHO WAS SEARCHED, WAS FINALIZED ON 29.12.2000, WHEREAS NOTICE U/S.158BD T O THIS ISSUE WAS ISSUED ON 30.7.2001. IN VIEW OF THESE DISCUSSIONS, WE UPHO LD THE GRIEVANCE OF THE ASSESSEE AND QUASH THE IMPUGNED ASSESSMENT ON JURIS DICTIONAL ISSUE. [EMPHASIS, OURS] THE TRIBUNAL HAS, AS APPARENT, DISPOSED THE REVENUE S APPEAL/S ON THE SHORT GROUND OF ABSENCE OF JURISDICTIONAL FACT, I.E., RECORDING OF SATISFACTION, IN THE CASE OF PERSON SEARCHED, AND FURTHER, DURING THE COURSE OF HIS ASS ESSMENT PROCEEDINGS U/S.158BC . IT FURTHER GOES ON TO STATE THAT WHILE THE ASSESSMENT U/S.158BC WAS FINALIZED ON 29.12.2000, NOTICE U/S.158BD HAD BEEN ISSUED TO THE ASSESSEE ON LY ON 30.07.2001. HOW COULD, WE WONDER, THE TRIBUNAL STATE SO, IF IT HAD, AS IS BEI NG CONTENDED BY THE ASSESSEE BEFORE US, CONSIDERED THE LETTER DATED 21.08.2000 BY THE A.O. OF THE PERSON SEARCHED TO THE 5 MA NOS. 394/MUM/2011 & 341/MUM/2013 (B. P. 01.04.88 TO 17.12.98) ASST. CIT VS. GYAN CONSTRUCTION CO. ASSESSEES A.O . IT COULD HAVE SAID THAT THE LETTER DATED 21.08.20 00 DID NOT AMOUNT TO SATISFACTION; THAT A FRESH SATISFACTION OUGHT TO HA VE BEEN RECORDED FOR INITIATING PROCEEDINGS U/S.158BD, SO ON AND SO FORTH. THERE IS, HOWEVER, COMPLETE ABSENCE OF ANY REFERENCE TO THE LETTER DATED 21.08.2000 , WHICH FORMS THE BASIS ON WHICH, FIRSTLY, NOTICE U/S. 158BC (ON 30.08.2000) AND THEN U/S.158BD (ON 3 0.07.2001) HAD BEEN ISSUED TO THE ASSESSEE. IT IS ONLY IN SUCH A CASE THAT THE ASSESS EE COULD MAKE OUT A CASE, AND PERHAPS VALIDLY, OF THE MATTER HAVING BEEN CONSIDERED BY TH E TRIBUNAL, SO THAT IT COULD NOT BE REVISITED AGAIN U/S. 254(2), BUT ONLY SUBJECT TO RE VIEW FOLLOWING THE APPELLATE PROCEDURE. THE ASSESSEE ALLUDES TO LETTER DATED 27.01.2010, AN D WHICH FURTHER HAS REFERENCE TO LETTER DATED 21.08.2000. THE SAME DOES NOT ASSIST T HE ASSESSEES CASE IN ANY MANNER. ON THE CONTRARY, IT ESTABLISHES THAT OF THE REVENUE. T HE LETTERS ENCLOSED ALONG WITH, BEING DATED 23.09.2009 AND 29.12.2008, IS THE COMMUNICATI ON BETWEEN THE ASSESSEES A.O. AND THE LD. CIT-DR, REPRESENTING THE REVENUES CASE BEF ORE THE TRIBUNAL, IN RESPECT OF THE REVENUES APPEALS BEFORE IT. ALSO ENCLOSED ALONG WI TH IS THE ORDER SHEET ENTRY DATED 30.08.2000 BY THE ASSESSEES A.O. ON THE RECEIPT OF THE LETTER DATED 21.08.2000, PRIOR TO THE ISSUE OF NOTICE U/S.158BC ON THAT DATE. THERE I S AMPLE REFERENCE IN ALL OF THEM TO THE LETTER DATED 21.08.2000 IN RELATION TO THE SATISFAC TION OF THE A.O. OF THE PERSON SEARCHED, AND ALSO INCLUDES THE SAID LETTER, WHICH WE FIND TO HAVE BEEN EVEN SEPARATELY FILED. THE SAID MATERIAL THUS FORMS PART OF THE TRIBUNALS REC ORD . IN THE ABSENCE THEREOF, IT WAS, IN VIEW OF, AS AFORE-STATED, THE IMPUGNED ORDER BEING SANS ANY REFERENCE TO THE LETTER DATED 21.08.2000, OPEN FOR ONE TO ARGUE THAT THERE BEING NO REFERENCE THERETO, THERE IS NOTHING ON RECORD TO EXHIBIT OR CONTEND THAT ANY SATISFACTI ON HAD INDEED BEEN RECORDED BY THE A.O. OF THE PERSON SEARCHED PRIOR TO THE NOTICE U/S .158BD, AND WHICH, AS CLARIFIED BY THE APEX COURT PER ITS DECISION IN THE CASE OF INDORE CONSTRUCTION PVT. LTD. (SUPRA) AND, LATELY, CIT VS. CALCUTTA KNITWEARS [2014] 362 ITR 673 (SC), NOTED BY THE BENCH DURING HEARING, IS THE ONLY QUALIFYING CONDITION FOR ASSUMPTION OF JURISDICTION FOR ASSESSMENT OF UNDISCLOSED INCOME OF A PERSON OTHER THAN THE PERSO N SEARCHED/REQUISITIONED. THE SAID MATERIAL ALSO AMPLY CLARIFIES OF THE SAID ASPECT HA VING BEEN RAISED BY THE REVENUE BEFORE 6 MA NOS. 394/MUM/2011 & 341/MUM/2013 (B. P. 01.04.88 TO 17.12.98) ASST. CIT VS. GYAN CONSTRUCTION CO. THE TRIBUNAL DURING THE HEARING OF ITS APPEALS UNDE R REFERENCE, AS ABSENCE OF ANY MENTION THEREOF, EVEN IN THE SECTION OF THE IMPUGNED ORDER RECORDING THE ARGUMENTS (PARAS 3 TO 7), AS ALSO THE OPENING SENTENCE OF PARA 9 (REPRODUCED ABOVE), WHICH STATES OF THAT BEING THE ADMITTED POSITION, DOES SUGGEST OF NO ARGUMENT OR P LEA HAVING BEEN RAISED ON THIS FUNDAMENTAL JURISDICTIONAL ISSUE, ON THE BASIS OF W HICH THE TRIBUNAL HAS DISPOSED THE APPEALS, SO THAT THE SAME CAUSES TO REMOVE ANY DOUB T IN THE MATTER IN VIEW OF IT HOLDING THAT NO SUCH EXERCISE HAD BEEN ADMITTEDLY CARRIED O UT, AND WHICH IS FACTUALLY INCORRECT. WE FIND NO BASIS TO HOLD THAT THE TRIBUNAL HAD CONS IDERED THE LETTER DATED 21.08.2000, AS CONTENDED BEFORE US BY THE ASSESSEE; IT, RATHER, PR OCEEDING ON THE PREMISE OF THE ABSENCE OF RECORDING OF ANY SUCH SATISFACTION AS BEING THE ADMITTED POSITION. THERE HAS THUS CLEARLY OCCURRED A MISTAKE BY THE TRIBUNAL IN SO RE CORDING . 4.3 THE ASSESSEE CLAIMS THAT MERE INTIMATION IS NOT SATISFACTION AS CONTEMPLATED U/S.158BD. THE REVENUES STAND IS THAT THE SATISFAC TION U/S.158BD IS PATENT FROM THE MATERIAL ON RECORD, I.E., THE LETTER DATED 21.8.200 0 BY THE A.O. OF THE PERSON SEARCHED, WHICH SPEAKS OF DISCLOSURE (ON ACCOUNT OF INFLATED EXPENSES), INCRIMINATING DOCUMENTS FOUND AT THE TIME OF SEARCH, ALSO REFERRING TO THE APPRAISAL REPORT, WHICH IT STATES AS SELF- EXPLANATORY. BESIDES, THE ACT DOES NOT PRESCRIBE AN Y PARTICULAR FORMAT OR MANNER FOR RECORDING SATISFACTION. WHAT ELSE DOES THE A.O. OF THE PERSON SEARCHED, ALLUDING THEREIN TO THE DISCLOSURE U/S. 132(4), INFLATED EXPENSES, ETC. , REQUEST THE ADDRESSEE TO PROCEED IN THE MATTER/TAKE NECESSARY ACTION FOR, IF NOT FOR ASSESS MENT OF INCOME AS PER LAW? THE LETTERS 21.07.2010, 23.09.2009 AND 29.12.2008 (SUPRA); THE STATEMENT RECORDED U/S. 132(4) OF SHRI G. R. MADANI ON 18.12.1998 (PB PG.4); THE WARR ANT OF AUTHORIZATION DATED 17.12.1998, ET. AL. ARE ALL SUPPLEMENTARY MATERIALS , AND HAVE TO BE CONSIDERED. WHETHER THE SATISFACTION STANDS CORRECTLY RECORDED; WHETHER THE SAME IS IN THE MANNER AS CONTEMPLATED UNDER THE ACT; WHETHER THESE MATTERS A RE AT ALL JUSTICIABLE, ETC. ARE ALL MATTERS OF ARGUMENTS, WHICH DO NOT ARISE OUT OF THE TRIBUNALS ORDER, INCLUDING THE QUESTIONS RAISED, AND THE ARGUMENTS MADE IN PURSUAN CE THEREOF, BEFORE IT. EVEN OTHERWISE, IT IS DOUBTFUL IF THESE ASPECTS COULD BE CONSIDERED IN THE RECTIFICATION PROCEEDINGS. RATHER, 7 MA NOS. 394/MUM/2011 & 341/MUM/2013 (B. P. 01.04.88 TO 17.12.98) ASST. CIT VS. GYAN CONSTRUCTION CO. AS APPARENT FROM THE READING OF PARAS 3 TO 7 OF THE IMPUGNED ORDER, THE ARGUMENTS PERTAINED TO THE SATISFACTION DATED 30.08.2000, I.E ., BY THE ASSESSEES A.O., AND WHICH HAVING NOT BEEN SEPARATELY RECORDED AGAIN BY THE PR ESENT A.O., WAS ARGUED BY THE ASSESSEE TO BE VIOLATIVE OF THE SCHEME OF THE ACT. AS WE OBSERVE, THE TRIBUNAL CONFUSED THE ISSUE OF NOTICE U/S.158BD, I.E., ON 30.07.2001, WITH THE RECORDING OF THE RELEVANT SATISFACTION - WHICH IS TO BE BY THE A.O. OF THE PE RSON SEARCHED, COMPARING THE SAID DATE WITH THAT OF THE FINALIZATION OF HIS ASSESSMENT U/S .158BC ON 29.12.2000, AND WHICH ARE CLEARLY NOT TO BE COMPARED, PARTICULARLY IN THE FAC TS AND CIRCUMSTANCES OF THE CASE. THE SATISFACTION IN TERMS OF SECTION 158BD, IT IS CLEAR FROM THE RELEVANT PROVISION, BESIDES BEING BY NOW WELL SETTLED, IS TO BE RECORDED BY THE A.O. OF THE PERSON SEARCHED AND NOT THE ASSESSEES A.O., WHO THOUGH WOULD ISSUE NOTICE U/S. 158BD. THE REVENUES CASE, ON THE OTHER HAND, IS STRICTLY BASED ON THE SATISFACTI ON RECORDED BY THE A.O. OF THE PERSON SEARCHED, AND PRIOR TO THE ISSUE OF NOTICE U/S.158B D ON THE ASSESSEE, WHILE NO SUCH SATISFACTION, IN THE VIEW OF THE TRIBUNAL, HAD BEEN RECORDED, AND WHICH IT BELIEVES TO BE THE ADMITTED POSITION, SO THAT THE SAME COULD NOT BE A SUBJECT MATTER OF DISPUTE. HERE IT MAY ALSO BE PERTINENT TO STATE THAT THE REV ENUE HAD PROCEEDED AGAINST THE ASSESSEE U/S.158BC, I.E., IN THE FIRST INSTANCE, IN VIEW OF THE SPECIFICATION OF THE ASSESSEES NAME IN THE WARRANT OF AUTHORIZATION ITSELF (COPY O N RECORD), AS SOUGHT TO BE EMPHASIZED BY THE ASSESSEES A.O. TO THE LD. CIT-DR VIDE THE L ETTERS AFORE-REFERRED. ALSO, THERE IS NO GAINSAYING, BEING A MATTER OF TRITE LAW, THAT THE E XERCISE OF POWER WOULD BE REFERABLE TO A JURISDICTION CONFERRING VALIDITY UPON IT AND NOT TO A JURISDICTION UNDER WHICH IT WOULD BE NUGATORY. FURTHER, THE ASSESSMENT U/S. 158BC, EVEN IF THE ASSESSEE IS NOT THE PERSON SEARCHED, IS THEREFORE TO BE CONSTRUED AS U/S.158BD , WHICH ONLY ENABLES THE ASSESSMENT OF THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD IN RESP ECT OF THE PERSON OTHER THAN THE PERSON SEARCHED, AND WHICH (ASSESSMENT) WOULD ONLY BE U/S. 158BC, AS STANDS AMPLY CLARIFIED BY THE AMENDMENT TO SECTION 158BD BY THE INSERTION OF THE WORDS UNDER SECTION 158BC, AFTER THE WORDS SHALL PROCEED AND BEFORE THE WORD S AGAINST SUCH OTHER PERSON, BY FINANCE ACT, 2002 W.E.F. 01.06.2002, WHICH IS THERE FORE ONLY CLARIFICATORY IN NATURE, 8 MA NOS. 394/MUM/2011 & 341/MUM/2013 (B. P. 01.04.88 TO 17.12.98) ASST. CIT VS. GYAN CONSTRUCTION CO. OPERATING TO VALIDATE EVEN THE ASSESSMENT IN THE FI RST INSTANCE ON 29.12.2000; THE SECOND BEING ON 28.07.2003. REFERENCE MAY BE MADE INTER ALIA TO THE DECISIONS IN L. HAZARI MAL KUTHIALA VS. ITO [1961] 41 ITR 12 (SC) AND CALCUTTA KNITWEARS (SUPRA). THE LATTER DECISION WOULD RENDER THE RELIANCE BY THE TRIBUNAL ON THE DECISION IN THE CASE OF MANOJ AGARWAL (SUPRA) AS INVALID. FURTHER, THE REVENUE HAD, WE AL SO NOTE, NOT ACCEPTED THE ORDER BY THE TRIBUNAL DATED 28.11.2008 (SUPRA), DIS MISSING THE REVENUES APPEAL QUASHING THE ASSESSMENT U/S.158BC DATED 29.12.2000, BUT PREF ERRED AN APPEAL THERE-AGAINST BEFORE THE HONBLE JURISDICTIONAL HIGH COURT (IN ITA NO. 5 138 OF 2010). THE HONBLE COURT, HOWEVER, VIDE ITS ORDER DATED 27.03.2012 (COPY ON R ECORD), DISPOSED OF THE SAME BY STATING THAT THE REVENUE HAD SINCE FRAMED AN ASSESS MENT (I.E., THE SUBJECT ASSESSMENT), AND WHICH STANDS ALSO REVIEWED BY THE TRIBUNAL VIDE ITS ORDER DATED 29.12.2010, SO THAT IT DECLINED TO ANSWER THE QUESTIONS OF LAW SOUGHT TO B E RAISED BEFORE IT BY THE REVENUE, WHICH WAS FURTHER ADVISED TO PURSUE SUCH REMEDIES A S AVAILABLE TO IT UNDER LAW, I.E., IN RESPECT OF THE IMPUGNED ORDER. WE PLACE THESE FACTS AND ASPECTS OF THE MATTER ON RECORD TO BRING FORTH CLARITY ON THE FACTS OF THE CASE. 4.4 IN VIEW OF THE FOREGOING, THE IMPUGNED ORDER IS ACCORDINGLY AMENDED BY VACATING THE FINDINGS BY THE TRIBUNAL PER THE IMPUGNED ORDER , I.E., AS TO THE ABSENCE OF THE JURISDICTIONAL FACTS FOR THE REVENUE TO PROCEED U/S .158BD. THE REVENUES APPEALS ARE ACCORDINGLY RESTORED FOR BEING DECIDED ON MERITS, I .E., ON ALL GROUNDS, FOR WHICH PURPOSE THE MATTER IS TO BE PLACED BEFORE THE REGULAR BENCH . WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE REVENUES MISCELLANEOUS APPLI CATIONS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 17, 2 014 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER $ % MUMBAI; - DATED : 17.10.2014 . ../ ROSHANI , SR. PS 9 MA NOS. 394/MUM/2011 & 341/MUM/2013 (B. P. 01.04.88 TO 17.12.98) ASST. CIT VS. GYAN CONSTRUCTION CO. !'#$% &%'# / COPY OF THE ORDER FORWARDED TO : 1. '. / THE APPLICANT 2. /0'. / THE RESPONDENT 3. $ 1' ( ) / THE CIT(A) 4. $ 1' / CIT - CONCERNED 5. 45 /' 6 , ( 6+ , $ % / DR, ITAT, MUMBAI 6. 578 9% / GUARD FILE ( / BY ORDER, )/(* (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI