- (1.) The subject matter of challenge in this appeal is a judgment and order dated 3rd September, 2004 pertaining to the block assessment for the assessment year 1990-1991 to 2000-2001. The questions formulated at the time of admission of the appeal are as follows:- " I) Whether in view of the fact that the warrant of authorization has been issued on 2nd December, 1999 and the search was conducted in execution of the said warrant of authorization on 8th December, 1999 and the further alleged search on 31st January, 2000 was alleged to have been made by an officer who was not authorized under the warrant of authorization dated 2nd December, 1999, the assessment which has been made under Section 158BC of the Act on 31st January, 2002 is barred by limitation in view of Section 158BE (b) of the Act? II) Whether on a true and proper interpretation of Section 132(3) of the Act the prohibitory order made under Section 132(3) in respect of jewelleries which have been found in the course of search and which has been valued by the departmental valuer on the very day in the course of search when the authorized officer has not recorded any reasons as to why same cannot be seized under the second proviso to Section 132(1) of the Act, in the absence of any finding or reason the order under Section 132(3) of the Act is illegal, invalid and without jurisdiction? III) Whether when the order under Section 132(3) is operative and the appellant is prohibited from removal or otherwise dealing with jewelleries covered under Section 132(3) of the Act the authorized officer has any competence or jurisdiction or authority to conduct any search in respect of said very articles in respect of which the prohibitory order is still operative? IV) Whether in view of the authorization dated 2nd December, 1999 and in the absence of any further authorization the order passed under Section 158BC ( c ) on 31st January, 2002 is barred by limitation and is therefore illegal, invalid and without jurisdiction? "
(2.) The facts and circumstances of the case appearing from the assessment order which do not appear to have been disputed before the appellate authorities nor before us are as follows:- " A search & seizure was carried out on 8.12.99 and 25.1.2000 at the residence of Shri Navin Kr. Agarwal at 321 Samundra Mahal, Dr. A. B. Road, Worli, Mumbai 18. Notice u/s.158BC dt.23.6.2000 was issued and duly served on the assessee. In response to the above notice u/s 158BC, return for the Block Period for A.Y. 1990-91 to 1999-2000 was filed on 15.9.2000 declaring total undisclosed income at NIL. During the course of search, cash to the tune of Rs.1,06,700/- was found, of which Rs.80,000/- were seized. Jewellery and paintings worth Rs.15,57,021/- and Rs.29,07,000/- respectively were found and there was no seizure. Mr. Ramesh Kr. Patodia, FCA and A/R of the assessee started effective compliance only w.e.f. 14.12.01. Mr. Patodia was requested to file some details e.g. Cash found and explanation with reference to bank Statement, if any, paintings found, jewellery, silver utensils, value added tax with reference to letters dt.8.10.99 addressed to shop owner at "Sandton City" etc. As stated the compliance came and Mr. Patodia filed only part of the details as per the requisition. Meanwhile, in order to record deposition of Mr. Navin Agarwal, notice u/s/131 dt. 26.12.01 was issued and served on the assessee duly but this endeavour has not been successful inspite of repeated opportunities provided from this end. Finally, on 28.1.2002 Mr. Patodia vide a petition pleaded that due to work pressure (preoccupied too) it is not at all possible for his client to come all the way to Kolkata for attending the summon. Here it may be mentioned that vide notice u/s/131 dt.26.12.2001 opportunities for personal appearance were provided on 4.1.02, 21.1.02 and 28.1.02. The notice u/s 131 dt.26.12.01 was served on 27.12.01 and since then the assessee failed to pay any importance to the said notice till 28.1.02. It is improbable that the assessee could not come to Kolkata in a month's time. The act of the assessee has left no other alternative but to give me the impression that the assessee is not at all interested in appearing before me and in furnishing details as that will not be beneficial to his case."
(3.) The assessment was completed on 31st January, 2002. In an appeal preferred by the assessee, the CIT held that the assessment was barred by time. In an appeal preferred by the Revenue, the learned Tribunal reversed the order of the CIT and held that the assessment order was passed within the time limit prescribed under Section 158BE of the Income Tax Act, and the matter was restored to the file of the CIT (A) with the direction to decide the matter on merits. Challenging the aforesaid order the present appeal was preferred by the assessee.;