By K. B. Bhujle
Advocate
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Dr. Gautam Sen vs. CCIT; [2016] 74 taxmann.com 128 (Bom):
Revenue carried out the search on
16th january, 1999 u/s. 132 of the income-tax act, 1961 on the Petitioner and
his premises. During the course of the search, an amount of Rs.20,000/- in cash
was found in his house which was explained to the satisfaction of the revenue. Nothing
incriminating was found during the course of search. However, a notice dated 16th May 2000 was
issued u/s. 158BC of the Act to the Petitioner to file his return of income for
the block period covered by the search.
The petitioner filed a writ
petition before the Bombay High Court challenging the validity of the notice on
the ground that during course of search, nothing was found with the Petitioner,
so as to infer that he was in possession of any undisclosed income either at
the time of search or at any time prior thereto. Consequently, in the absence
of there being undisclosed income, the Assessing Officer would not have any
justification to issue the impugned notice u/s. 158BC of the act.
The Bombay high Court allowed the
writ petition and held as under:
“i) Action of the revenue in
issuing section 158BC notice despite the appraisal report clearly stating that
no incriminating material was found against petitioner was highly deplorable as
it amounted to harassment of the taxpayer. The Officers of the income tax
department are obliged to proceed
in accordance with
the statutory provisions and cannot act on their whim and
fancy. The department should adopt a standard operating procedure to provide
adequate safeguards before issuing notices under Chapter XVIB.
ii) In the above facts, the impugned notice is
quashed and set aside.
iii) This is the fit case where
costs should be awarded to the Petitioner. The Respondents-revenue i.e. the jurisdictional Chief Commissioner of income
tax (respondent no.1) is directed to pay the costs of Rs.20,000/- to the
Petitioner within four weeks from today.”
