ITXA.876.2013.17.doc IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rt INCOME TAX APPEAL NO. 876 OF 2013 ou Commissioner of Income Tax 24 } Appellant versus M/s. B. J. Development Corporation } Respondent C Mr. Arvind Pinto for Appellant. Mr. S. C. Tiwari with Ms. Priyanka Maru for Respondent. h ig CORAM : S. C. DHARMADHIKARI & A. K. MENON, JJ. DATED : MARCH 30, 2015 H P.C. : This Appeal of Revenue is challenging order dated y 26th September, 2012 passed by Income Tax Appellate Tribunal, ba Bench at Mumbai. block period of assessment years 1 st April, 1996 to 24th January, 2003 was involved. om 2) Assessee brought to notice of Tribunal basic and undisputed facts. They are that survey and seizure operation B under section 132 of Income Tax Act, 1961 was conducted on 21 st January, 2003 at residential and business premises of M/s. Keystone Realtors Pvt. Ltd. (for short 'KRPL') and M/s. Rustomjee Landmark Construction Pvt.Ltd. (for short 'RLCPL'). RLCPL is one of group Page 1 of 5 J.V.Salunke,PA ::: Downloaded on - 17/08/2015 17:06:26 ::: ITXA.876.2013.17.doc companies of KRPL. That is engaged in real estate dealings. In case of RLCPL, block assessment under section 143(3) read with section rt 158BD of Income Tax Act, 1961 was completed on 31 st March, 2005 ou by Deputy Commissioner of Income Tax, Central Circle 10, Mumbai. During course of search, certain evidence was found and seized C from office of RLCPL, which indicated that on money was received on sale of flats in two projects, namely, Rustomjee Heritage and h Rustomjee Adarsh Regal . That is not recorded in books of ig account. In block assessment order of RLCPL, it was held by Assessing Officer that these two projects were undertaken by RLCPL and H Assessee before us jointly. Therefore, while completing block assessment in case of RLCPL, Assessing Officer has worked out y amount of on money receipt on basis of seized material ba indicating charging on money on sale of flats in these two projects at certain figure and which was to be apportioned according to that om Assessing Officer in ratio of 50:50 amongst RLCPL and present Assessee. In pursuance to block assessment in case of RLCPL B completed as above, Assessing Officer in case of Assessee before us received confidential letter dated 31 st March, 2005 from Deputy Commissioner of Income Tax, Central Circle 30, Mumbai. On basis of this information received and contained in confidential letter, proceedings under section 158BC were initiated by issuing notice Page 2 of 5 J.V.Salunke,PA ::: Downloaded on - 17/08/2015 17:06:26 ::: ITXA.876.2013.17.doc under section 158BD of Income Tax Act, 1961 on 10 th May, 2005. block assessment was completed and addition of rt Rs.1,28,12,145/ being 50% sum derived towards alleged on money ou receipts and determined in manner aforestated was added to income of Assessee before us by Assessing Officer in his order C dated 31st May, 2007. 3) matter was carried in Appeal up to Tribunal and h raising additional ground with regard to validity of order under ig section 158BD read with section 158BC of Income Tax Act, 1961 for H want of inherent jurisdiction. In initial round of litigation ending in Tribunal's order dated 2nd September, 2008, Tribunal remitted y matter back to Commissioner to examine legality and ba validity of proceedings. Pursuant to order and direction of Tribunal, Commissioner examined it and answered question om framed against Assessee. aggrieved Assessee approached Tribunal in second round and pointed out that pre condition for invoking section 158BD is not satisfied. Tribunal has found merit B in such objection. 4) Tribunal extensively dealt with rival contentions. After setting them out, it has rendered opinion after noticing language of section 158BD and above undisputed facts. It has also Page 3 of 5 J.V.Salunke,PA ::: Downloaded on - 17/08/2015 17:06:26 ::: ITXA.876.2013.17.doc perused records by summoning them from file of Assessing Officer. It found that in case of RLCPL block assessment was rt completed. That was on basis of search carried out under ou section 132 on premises of distinct company, namely, KRPL. While assessing income and scrutinising return of another company C RLCPL that Assessing Officer having jurisdiction noted on money receipt and presence of Assessee before us. h 5) Tribunal applying language of sections ig concerned and Judgment of Hon'ble Supreme Court analysing it H rendered in case of Manish Maheshwari vs. Assistant Commissioner of Income Tax reported in 289 ITR 341 concluded that principal y condition for invoking provisions was not satisfied. These ba conclusions and rendered from para 6 to 9 onwards holding that block assessment under section 158BD read with 143(3) of Income om Tax Act, 1961 is void ab initio do not raise any substantial question of law. B 6) We are not in agreement with Mr. Pinto that revised questions of law would arise because Tribunal has refrained from expressing any opinion on merits. It has not set aside addition made by Assessing Officer in case of Assessee before us nor sustained it. It has simply quashed proceedings for want of Page 4 of 5 J.V.Salunke,PA ::: Downloaded on - 17/08/2015 17:06:26 ::: ITXA.876.2013.17.doc jurisdiction and based on satisfaction which has to be arrived at as principal condition within meaning of section 158BD of Income rt Tax Act, 1961. Therefore, Tribunal's conclusion has not, in any ou manner, prejudiced Revenue nor affected other remedies and powers available to it under Act. It can bring amounts, if any, to C tax and in case of present Assessee by taking recourse of law. Therefore, all more we do not think that Tribunal's conclusions, h which are otherwise not perverse or vitiated by any error of law ig apparent on face of record need to be interfered with by us. Appeal is therefore not raising any substantial question of law. It is H devoid of merits and dismissed accordingly. No costs. y (A.K.MENON, J.) (S.C.DHARMADHIKARI, J.) ba om B Page 5 of 5 J.V.Salunke,PA ::: Downloaded on - 17/08/2015 17:06:26 ::: CommissionerofIncomeTax24 v. M/s.B.J.DevelopmentCorporation