High Court Of Allahabad
Superhouse Overseas Ltd. vs. DCIT
Rajes Kumar & Pankaj Mithal, JJ.
Civil Misc. Writ Petn. No. 767 of 2001
27th April, 2010
Counsel appeared :
Ashish Bansal, for the Petitioners : Shambhu Chopra, for the Respondent
Rajes Kumar, J. :
By means of the present writ petitions, the petitioners (referred to hereinabove) are challenging the notices under s. 158BD of the IT Act, 1961 (hereinafter referred to as “the Act”).
2. The brief facts giving rise to the present writ petitions are that a search and seizure under s. 132 (1) of the Act took place at the residence of one Sri Tariq Jamal, resident of 701, Gokul Apartments, Civil Lines, Kanpur on 18th Nov., 1998, in which a diary was seized by the Authorised Officer. In pursuance of the search and seizure, proceedings under s. 158BC have been initiated in the case of Sri Tafiq Jamal. It appears that on enquiry being made, Sri Tariq Jamal stated that the said diary was related to Empire Estate Building as was being jointly developed by AOP constituted by me and M/s Super House Overseas Ltd. wherein both of them had a share in the ratio of 60 per cent and 40 per cent However, a block assessment order dt. 28th Nov., 2000, was passed in the case of Sri Tariq Jamal by the Dy. CIT, Central Circle II, Kanpur. In the block assessment, the said diary was held to be belonging to Sri Tariq Jamal and on that basis an income of Rs. 183.44 lakhs was treated as undisclosed income of Sri Tariq Jamal. However, on the basis of the material found at the time of search, a notice dt. 3rd Nov., 2000 under s. 158BD was issued in the name of M/s Super House Overseas Ltd. and notice dt. 16th June, 2003 was issued in the name of Sri Mukhtarul Amin. Both the notices are being challenged by the petitioners, referred to hereinabove. Heard Sri Ashish Bansal, learned counsel for the petitioners and Sri Shambhu Chopra, learned standing counsel.
Learned counsel for the petitioners submitted that the material on the basis of which the notices under s. 158BD were issued, have been considered by the IT Settlement Commission in the case of Empire Estate AOP and the IT Settlement Commission has passed the order dt. 14th Dec., 2009 under s. 245D(4) of the Act in which on the basis of the said diary an income of Rs. 64,68,398 has been spread over in different years by applying project completion method. He further submitted that in pursuance of the order of the IT Settlement Commission, the Empire Estate AOP has duly deposited the tax amounting to Rs. 36,81,965. He further submitted that no appeal has been filed against the order of the IT Settlement Commission till date. A supplementary affidavit dt. 27th Jan., 2010, has been filed in Writ Petn. No. 767 of 2001 in this regard. On the basis of the aforesaid facts, he submitted that once the diary on the basis of which the notices under s. 158BD have been issued, has been considered in the case of Empire Estate AOP by the Income-tax Settlement Commission and income arising from the said diary has been assessed to tax, no further action can be taken in the proceedings under s. 158BD against the petitioners.
Sri Shambhu Chopra, learned standing counsel submitted that let the matter be sent back to the AO to consider the submissions of the petitioners and he may be directed to pass appropriate order.
In view of the aforesaid facts and circumstances, both the writ petitions are disposed of directing the AO to consider the pleas of the petitioners that once the diary which is the basis for the issue of the notices under s. 158BD have been considered in the case of Empire Estate AOP and the income arising from the entries of the diary has been assessed in the case of Empire Estate AOP, the notices under s. 158BD do not survive and liable to be vacated and pass the appropriate order in accordance to law.
[Citation : 325 ITR 448]