Commissioner of Income Tax (Central), Kochi v Premkumar

**C.R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939 ITA.No. 419 of 2009 -------------------- AGAINST THE ORDER IN ITA 25/2007 of I.T.A.TRIBUNAL,COCHIN BENCH DATED 04-06-2008 APPELLANT/RESPONDENT: --------------------- THE COMMISSIONER OF INCOME TAX(CENTRAL) (CENTRAL), COCHIN. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT/APPELLANT: -------------------- MR. P.PREMKUMAR, ADVOCATE, KOCHI R1 BY ADV. SRI.K.I.MAYANKUTTY MATHER R1 BY ADV. SRI.MAHESH V.MENON THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 26.7.2016, THE COURT ON 20-10-2017 DELIVERED THE FOLLOWING: ITA NO.419 OF 2009 ## APPENDIX APPELLANT'S ANNEXURES: ANNEXURE A TRUE COPY OF THE ORDER SHEET RECORDING OF THE ASSESSING OFFICER. ANNEXURE A1 A TYPE WRITTEN COPY OF THE ORDER SHEET RECORDING OF THE ASSING OFFICER. ANNEXURE B TRUE COPY OF THE ASSESSMENT ORDER U/S 158 BD ANNEXURE C TRUE COPY OF THE ORDER OF THE CIT(A) ANNEXURE D TRUE COPY OF THE ORDER OF ITAT ANNEXURE E TRUE COPY OF THE STATEMENT U/S 132(4). ANNEXURE E1 TYPEWRITTENC OPY OF THE STATEMENT U/S 132(4). ANNEXURE F TRUE COPY OF THE BLOCK PERIOD RETURN ANNEXURE F1 TRUE COPIES OF CASH FLOW STATEMENTS FILED ALONG WITH THE BLOCK RETURN. TRUE COPY CSS/ P.S.TO JUDGE **C.R.** ## **Antony Dominic & Dama Seshadri Naidu, JJ.** ------------------------------------------------- I. T. Appeal No.419 of 2009 -------------------------------------------------Dated this the 20[th] day of October 2017 ## **JUDGMENT** Dama Seshadri Naidu, J ## **Introduction:** Assessee Premkumar is an advocate practicing, mainly, before the Motor Accident Claim Tribunals. He filed his returns of income for only the assessment years 1991-92 to 1994-95. 2. On 4 November 2000, the IT officials searched the business premises of one Mr. V. H. Mohammed Rafeeque; relating to it, under section 132 of the Act, they searched Prem Kumar’s house, too. The search is said to be simultaneous with that undertaken by the Central Bureau of Investigation (“CBI”). This search led to the Assessing Officer’s passing an order under section 153 BC. But, on appeal, the Commissioner of Income- ITA No.419 OF 2009 2 Tax (Appeals) (“the Appellate Commissioner”) ruled that the proceedings ought to have been initiated under section 158 BD, the provision that concerns the undisclosed income belonging to some person other than the one regarding whom the search was made. 3. Acting on the Appellate Commissioner’s direction, the Assessing Officer, on 28 July 2005, passed orders afresh: He determined the total undisclosed income at `2,02,71,670/-. On appeal, the Appellate Commissioner confirmed the assessment order. Aggrieved, Premkumar approached the Appellate Tribunal, which reversed the findings and ruled in Premkumar’s favour. Now, the Revenue came in appeal before this Court. 4. The Tribunal had “no hesitation to quash the 158BD assessment in the case.” But it dismissed the surcharge issue covering `20,67,710/- as “not pressed” by assessee-Premkumar. ## **The Adjudicatory Ambit:** 5. The Assessing Officer, to his credit, reassessed the case on remand and passed an order solid on facts and sound in reasoning. The Assessing Officer has, overall, done an impeccable job—its ITA No.419 OF 2009 3 correctness not counting here. When the matter finally reached the Tribunal, it allowed the second appeal, excluding the issue ‘not pressed’ by Premkumar. 6. Here, we must observe that, more than merits, the jurisdictional, procedural, and technical issues have weighed heavily with the Tribunal in its deciding the second appeal. And we cannot take exception to the Tribunal’s approach for “the life of the law has not been logic; it has been experience.” In expropriatory proceedings, as with the penal ones, technicalities matter as much as the substantial justice counts. So, we touch on the facts to the extent they are necessary to dispose of this appeal. ## **The Search:** **7.** Both the Department and the CBI on 4 November 2000 conducted simultaneous, if not joint, search at Premkumar’s residence. “On the basis of the material found during search, such as duplicate copies of documents relating to the land transactions, various passbooks, diaries, list of documents and bank locker keys seized by the CBI and evidence gathered subsequently,” the Department ITA No.419 OF 2009 4 initiated proceedings under section 158 BC of the Act. Put on notice, Premkumar declared an undisclosed income of `10,69,094/- 8. The matter remanded, having been put on notice, Premkumar once again filed his objections on 14 January 2005. He requested Assessing Officer to reconsider the findings in the previous assessment order, dated 26 November 2002, passed under section 158BC. Premkumar cross-examined two witnesses, too. ## **The Assessing Officer’s Findings:** 9. The Assessing Officer based his findings on two factors: Premkumar’s professional income as a lawyer, and the notings in the diary found in his house. 10. As to the professional income, the Assessing Officer, after examining various awards in compensation claims handled by Premkumar, took the total award amount during the relevant period as `15,56,99,881/. And he fixed Premkumar’s professional income at 12% of the aggregate award amount. 11. As to the properties, both movable and immovable, presumably owned by Premkumar, the Assessing Officer concluded ITA No.419 OF 2009 5 that all assets had been acquired by Premkumar but conveniently kept in the family members’ names. By marshalling the facts, collating the data, examining the witnesses, and by drawing conclusions from all the above sources, the Assessing Officer issued the primary order. Yet, as the Appellate Tribunal’s adjudication turned on technicalities and jurisdictional aspects, we refrain from the dwelling deeper into the facts. 12. As seen, Assessing Officer arrived at the undisclosed income for the block period: |Assessment Year<br>AY|Undisclosed Income<br>Rs.| |---|---| |AY 1991-92|8,400| |AY 1992-93|10,739| |AY 1993-94|28,608| |AY 1994-95|14,48,762| |AY 1995-96|13,40,567| |AY 1996-97|12,24,797| |AY 1997-98|18,53,241| |AY 1998-99|36,14,112| |AY 1999-2000|45,43,633| |AY 2000-01|46,01,2011| |AY 2001-02 (Part)|15,97,600| |Total Undisclosed Income|**2,02,71,670**| ITA No.419 OF 2009 6 13. Finally, Assessing Officer directed Premkumar to pay, on the above undisclosed income, tax as follows: 14. Income Tax: `1,21,63,002/-; surcharge (at 17%): `20,67,710/-; Addl. Interest (u/s.158BFA for 18 months):`26,32,679/-. Total tax and interest payable was rounded to `1,68,63,390/- **The Tribunal’s Findings:** ## **(A) About the Properties:** ## **(i) Immovable:** 15. Only two properties, out of nine, were in the assessee’s name. The residential property was purchased in 1990-91 and was shown in the regular return filed for the relevant assessment year. About the 1/3rd share in the land at Mundaveli, the assessee explained that he used his ‘chit’ amount to buy it. ## **(ii) Movable:** 16. The movable properties belong to the family members, all of whom are individual assessees ITA No.419 OF 2009 7 ## **(B) About the Income:** 17. All the records were seized only by the CBI, not the Department. The ''Binani Zinc Diary'' received from the CBI should not have been taken as evidence for the ‘block assessment.’ 18. The Department found no material to hold that the assessee had any professional income by way of MACT cases. And, in fact, all these materials were gathered after the search; it was through independent ‘survey action’ u/s. 133A of the Act. 19. The Assessing Officer has established no undisclosed income, and that undisclosed income is not related to the person searched; instead, it belonged to the person other than the person searched. Even the Panchnama, dated 26-3-2000, relates to the lands purchased; and it has nothing to do with the assessee’s professional fees. The Assessing Officer did not on his own initiated section158BD assessment; rather he acted on the the Appellate Commissioner’s directive. Submissions: 20. Sri P. K. Ravindranatha Menon, the learned Senior Counsel for the Revenue, has submitted that the Assessing Officer has taken an ITA No.419 OF 2009 8 informed decision to assess Premkumar under section 158 BD; a mere direction from the Appellate Commissioner does not vitiate the proceedings. As for the direction in the appeal, Sri Menon asserts that the provisions that concern the powers of an appellate authority must be read harmoniously. Thus read, the provisions, according to him, justify that an appellate order may contain directions other than those required to be made to confirm, reduce, enhance or annual the assessment. He also contended that the assessee, if aggrieved, should have appealed against that order. 21. To support his contentions, Sri Menon has relied on _Thakur v. Hari Prasad v. CIT_[1] , _Estate of Late Rangala Jojodia vs. CIT_[2] _,_ and _Sea Pearl Industries & Others v. CIT_[3] . 22. The ''Binani Zinc Diary'' was found in a simultaneous action, though seized by the CBI. And it is, asserts the learned Senior - 1 167 ITR 603 - 2 (1971) 79 ITR 505 (SC) - 3 247 ITR 578 (SC) ITA No.419 OF 2009 9 Counsel, 'evidence found as result of search' within the meaning of section 158BB of the Act. 23. The records seized by the CBI apart, the Assessing Officer has based his findings, according to the learned Senior Counsel, on the statements recorded under section 132 (4) during search. Sri Menon has also reminded us that the assessee himself declared an undisclosed income of `10,69,094 in the return filed on 14.01.2005 for the Block Period. 24. The ''Binani Zinc Diary'' found because of such simultaneous action, though seized by the CBI, is 'evidence found a s result of search' within the meaning of section 158BB and can be used for computation of undisclosed income under section 158BC or 158BD, as the case may be, asserts the learned Senior Counsel. ## **Assessee’s:** 25. Sri K. I. Mayankutty Mathar, the learned counsel for assessee-Premkumar, has supported the Tribunal’s findings in their entirety. According to him, both the Assessing Officer and the Appellate Commissioner have misdirected themselves. And the ITA No.419 OF 2009 10 Tribunal has corrected what he terms the glaring adjudicatory lapses and, so, quashed the proceedings, justly. 26. According to Sri Mather, the Appellate Commissioner’s direction to the Assessing Officer to reassess Premkumar under section 158 BD amounts usurpation of his legitimate adjudicatory powers as a primary authority. So he asserts that the resultant reassessment has been vitiated. To repel the Revenue’s contention that Premkumar ought to have challenged the Appellate Commissioner’s findings—remand and direction to reassess under a particular provision—Sri Mather submits that once an authority lacks power, the order renders itself a nullity, and it needs no challenge. 27. Sri Mather has diligently cited numerous decisions, but we will refer to those that are necessary for our purpose. ## **Substantial Questions of Law:** 28. The Department framed these substantial questions of law: 1. Is the Tribunal right in holding that AO’s statement that certain materials unearthed in the search has pointed to the undisclosed income? ITA No.419 OF 2009 11 2. Has the AO undertook section158BD assessment on the appellate authority’s direction, rather than of his own volition? 3. Has not the AO acted on certain “admitted facts”? 4. Ought not the assessee to have challenged the appellate authority’s remanding the matter? 5. Has not the AO computed the undisclosed income based on the statements under Section 132(4) of the Act and on further enquiries through survey under Section 133A? ## **Findings:** ## **The Scope of Appeal & The Powers of Appellate Authority:** 29. Section 251 of the Act spells out the powers of the Commissioner (Appeals). Before the amendment by Finance (No. 2) Act, 2014, the provision read: **251. Powers of the [* * *] Commissioner (Appeals)** .— (1) In disposing of an appeal, the [* * *] Commissioner (Appeals) shall have the following powers— - _a_ - ( ) _in an appeal against an order of assessment he may confirm, reduce, enhance or annul the assessment_ ; [* * *] - _aa_ - [( ) . . . - ( _b_ ) _in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty_ ; - _c_ - ( ) _in any other case, he may pass such orders in the appeal as he thinks fit._ (2) The [* * *] Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the ITA No.419 OF 2009 12 appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. _Explanation._ —In disposing of an appeal, the [* * *] Commissioner (Appeals) may consider and decide any matter arising out of proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the [* * *] Commissioner (Appeals) by the appellant. 30. As seen from the above extract, the provision empowers the appellate authority, in an appeal against an order of assessment, to confirm, reduce, enhance, or annul the assessment. True, as rightly contended by Sri Mather, the assessee’s counsel, before 01.06.2001, section 251 (1) (a) has an appendage: “or he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment in accordance with the directions given by the Commissioner (Appeals) and after making such further inquiry as may be necessary, the Assessing Officer shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment;”. 31. Sri Mather relies on a CBDT’s circular to drive home how the amendment has affected the Appellate Commissioner’s powers. He has cited the circular in his written submissions. Para 78 of the ITA No.419 OF 2009 13 circular notes that the of the clarificatory power Appellate Commissioner does not include the power to set aside the assessment. It was to finalize the assessment early and to avoiding prolonged litigation. The Appellate Commissioner will not set aside the assessment and refer the case back to the Assessing Officer for making fresh assessment. But the Appellate Commissioner continues to have the powers under Section 250 to inquire further, or to direct the Assessing Officer to inquire and report the result to him. After receiving the Assessing Officers’ enquiry report, the authority can rely on it or gather additional facts or evidence. 32. Sri Mather argues that the Appellate Commissioner has been stripped of the power to remand and remit not to protect an assessee’s interests but to avoid prolonged assessment proceedings, which, in fact, serves a public purpose. 33. The assessee contends that the remand is beyond the Appellate Commissioner’s powers, and his direction to the primary authority to consider a matter under a particular provision is much worse—indefensible. On the contrary, the Revenue asserts that ITA No.419 OF 2009 14 Premkumar first raised an objection that section 158BC had no application. This defence merited the Appellate Commissioner’s acceptance; it led to the remand. Absent any challenge to the order of remand, the order’s impact cannot be wished away: Premkumar cannot hunt with the hound and run with the hare; he should choose either. 34. A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction, lays down the Supreme Court[4] , cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book "On the Interpretation of Statutes", 11th Edn., at p. 375, describes the rule: “Another maxim which sanctions the non-observance of a statutory . provision is that _cuilibet licet renuntiare juri pro se introducto_ Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the > 4 Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, AIR 1964 SC 1300 ITA No.419 OF 2009 15 individual in his private capacity, which may be dispensed with without infringing any public right or public policy."[5] 35. The same rule is restated in _Craies on Statute Law_ , 6th Edn., at p. 269, thus: "As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court."[6] 36. The three-Judge Bench finally holds in _Dhirendra Nath_ that where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. > 5 As quoted in Nath Gorai (supra) 6Id. ITA No.419 OF 2009 16 37. A distinction exists between the provisions that confer jurisdiction and those that regulate procedure. Jurisdiction can neither be waived nor created by consent, holds a Constitution Bench of the . Supreme Court in _Supdt. of Taxes, Dhubri v. Onkarmal Nathmal Trust_[7] A procedural provision may be waived by conduct or agreement. Quoting with approval _Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd._ ,[8] _Onkarmal_ , _per_ C. N. Ray, C.J., further observes that waiver arises where a person is entitled to alternative rights inconsistent with one another. A person is sometimes said to have "waived"' the alternative right, as for instance a right to forfeit a lease or to rescind a contract of sale for wrongful repudiation or breach of condition. This is also sometimes described as "election" rather than "waiver". 38. _Onkarmal_ goes on to observe that there can be no waiver of a statutory requirement or provision which goes to the jurisdiction, of assessment. The origin of the assessment is either an assessee filing a 7AIR 1975 SC 2065 81971 A.C. 850 ITA No.419 OF 2009 17 return as contemplated in the Act or an assessee being called upon to file a return as contemplated in the Act. _Onkarmal_ postulates that revenue statutes are based on public policy; revenue statutes protect the public on the one hand and confer power on the State on the other. 39. _Onkarmal¸ per_ M. Hameedullah Beg, J. (as his Lordship then was), holds that the waiver, even where both sides have agreed to waive the operation of a statutory provision, cannot extend to a case in which the effect may be either to oust the jurisdiction conferred by statute or to confer a jurisdiction which, according to the statute, is not there. 40. In _Commissioner of Income Tax v. Jolly Fantasy World Ltd_ .[9] , a Division Bench of the Gujarat High Court, relying on the above two judgments, held, somewhat under similar circumstances as we face now, that as for the estoppel or waiver, it is immaterial that the assessee participated in the earlier round of litigation either before the Assessing Officer or before the Tribunal, or consequently before the 9[2015] 373 ITR 530 (Guj) ITA No.419 OF 2009 18 Assessing Officer. It cannot bar the assessee from challenging the jurisdictional authority of an adjudicator. 41. The High Court has undoubtedly jurisdiction to decide whether the taxing authority, observed the Supreme Court in _Bhopal Sugar Industries Ltd. v. D. P. Dube, Sales Tax Officer_[10] , has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on interpreting the statute which is erroneous. 42. Indeed, the assessee argues that the amendment took the appellate authority’s power to remand the matter. According to him, this denudation aims to serve a public interest: curtailing the adjudicatory delays and completing the assessments quickly. 43. The Revenue maintains that the authority who passed the order has the power to entertain an appeal, in the first place. If he has passed an order which does not strictly conform with the statutory mandate, he has, at best, exercised his power irregularly—or even 10AIR 1967 SC 549, as quoted in Okayti Tea Co. Ltd. vs. Income Tax Officer [160 ITR 487 (Cal)] ITA No.419 OF 2009 19 illegally. But, by no stretch, he acted without authority; nor has his order become nullity. 44. When an order under section 271 (1) (C) is passed in violation of section 274 (1), it is statutory violation, observes the High Court of Andhra Pradesh in _Thakur V. Hari Prasad._ The order may have violated a statute, and it may amount to an illegal order. But it can be corrected under section 254 of the Act. The order does not, thereby, become void. Uncorrected in appropriate proceedings, the order continues to hold good and remains in currency. 45. In _Sea Pearl Industries_ the Supreme Court examined Section 80-HHC of the Act. The Court observed that the object of Section 80HHC is to grant an incentive to earners of foreign exchange. The matter will, therefore, must be considered by referring to this object. In other words, Sea Pearl advocates the well-entrenched rule of purposive interpretation. 46. In _Okayti Tea_ , relied on by the Revenue, the Calcutta High Court has held that it is not open to a party to make a grievance about applying a rule unless he comes up with appropriate proceedings to ITA No.419 OF 2009 20 have the rule’s applicability property tested. Once the person acts at his own peril by not contesting a particular directive, he cannot urge in the proceedings under Article 226 of the Constitution all the questions which he could have raised in a reference, for the jurisdiction exercised by the court under Article 226 is limited. 47. All the above precedents examined, we reckon that the holding of _Dhirendra Nath, Onkarmal,_ and _Bhopal Sugar Industries_ is unmistakable. Under the amended section 251 of the Act, the Appellate Commissioner may confirm, reduce, enhance, or annul the assessment. But he cannot refer the case back to the Assessing Officer for making a fresh assessment; nor can he direct the Officer to decide in accordance with his directions. ## **Records and Satisfaction under Section 158 BD of the Act:** 48. Section 158 BD mandates that the Assessing Officer must be “satisfied that any undisclosed income belongs to any person, other than the person with respect to whom search was made under Section 132.” Here, meticulous and exhaustive as the primary order has been, the Assessing Officer has recorded no satisfaction that the disclosed ITA No.419 OF 2009 21 income at the hands of Muhammed Rafeeque actually belongs to Premkumar. As rightly contended by Sri Mathar, neither the notice nor the assessment order whispers about anything obtained in the search at the Muhammed Rafeeque’s premises. On the contrary, what was recorded is about the search of Premkumar’s house by the CBI and the Revenue Department—and the undisclosed of the very Premkumar. So, it may have been a search under section 158 BC of the Act. 49. In _Commissioner of Income Tax vs. Panchajanyam Management Agencies and Services_[11] , a Division Bench of this Court has held that even though section 158BD is an enabling provision authorising the Department to assess any person other than the searched Assessee or Assessees against whom documents and records are called for under Section 132A, still the assessment in such case must be completed strictly in accordance with the procedure provided under Section 158BC as stated above. But _Panchajanyam_ goes on to observe that there is no mention in Section 158BD that the AO before transferring the file to another officer having jurisdiction to assess the 11(2011) 333 ITR 281(KER) ITA No.419 OF 2009 22 person other than the Assessee proceeded under Section 132 or 132A has to record his satisfaction in writing. It finally holds that the validity of assessment is not affected from the Assessment Officer’s failure to record his satisfaction under Section 158BD; it is only to transfer the file. Once the file is transferred, the transferring officer becomes _functus officio_ and the jurisdiction for all purposes is transferred to the officer to whom file is transferred and who has jurisdiction to assess the Assessee about whom details are obtained while searching another assessee. 50. Contrary to _Panchajanyam_ are the Supreme Court’s precedents. While dealing with a taxing provision, the principle of ‘strict interpretation’ should be applied. The court shall not, observed the Supreme Court in _Sneh Enterprises_ v. _Commr. of Customs_[12] _,_ interpret the statutory provision in such a manner as would create an additional fiscal burden on a person. It is also trite that while two interpretations are possible, the court ordinarily would interpret the provisions in favour of a taxpayer and against the Revenue. 12(2006) 7 SCC 714 ITA No.419 OF 2009 23 51. Quoting _Sneh Enterprises_ with approval, another Division Bench of the Supreme Court in _Manish Maheshwari v. CIT_[13] has held that section 158-BD provides for taking recourse to a block assessment in terms of Section 158-BC regarding any other person, the conditions precedent for that are: ( _i_ ) satisfaction must be recorded by the assessing officer that any undisclosed income belongs to any person, other than the person regarding whom search was made under Section 132 of the Act; ( _ii_ ) the books of accounts or other documents or assets seized or requisitioned had been handed over to the assessing officer having jurisdiction over such other person; and ( _iii_ ) the assessing officer has proceeded under Section 158-BC against such other person. 52. Because of the authoritative assertion of the legal principles in _Manish Maheshwari_ about section 158 BD, we may obviate any reference to _Panchajanyam_ , whose holding turns on its own facts. 53. The upshot of the discussion is that the assessment order, dt.28.07.2005, is vitiated. 13(2007) 3 SCC 794 ITA No.419 OF 2009 24 ## **Limitation:** 54. The statutory requirement for completing the block assessment under section 158BE(2)(b) is “two years from the end of the month in which the notice under this Chapter was served on such other person in respect of search initiated or books of account or other documents or any assets are requisitioned on or after the 1st day of January 1997.” Determining the limitation under section 158BE (2)(b) of the Act, the Madras High Court in _Commissioner of Income Tax vs. K.M. Ganesan_[14] has held that if the notice is given first under section 158BC and then correctly given under section 158BD, the limitation runs from the date of first notice. 55. Here, the search under section 132 of the Act was conducted on 04.11.2000; the notice under section 158BC was issued on o8.06.2001. The proceedings were concluded on 28.07.2005, when the Assessing Officer passed the order. The notice under section 158BC of the Act, as is seen, was given way beyond two years ago. 14 333 ITR 562 ITA No.419 OF 2009 25 Even going by that reckoning, the whole proceedings have been barred by limitation. So, we hold that the impugned order, dt.04.06.2008, of the Appellate Tribunal is unexceptionable and unassailable. The questions of law, therefore, are answered against the Revenue and in favour of the assessee. The appeal is dismissed. No order on costs. **Sd/- Antony Dominic, Judge** **sd/- Dama Seshadri Naidu, Judge** css/ true copy P.S.TO JUDGE