M.S Shah, J.:— In this petition under article 226 of the Constitution, the petitioner has prayed for a writ of certiorari or any other appropriate writ for quashing the notice dated August 29, 2000 (annexure A), under section 158BD of the Income-tax Act, 1961 (hereinafter referred to as “the Act”), issued by the Joint Commissioner of Income-tax, Special Range-2, Rajkot, the sole respondent herein.

2. The facts leading to the filing of this petition, briefly stated and as averred by the petitioner, are as under:

The petitioner is engaged in the business of ship breaking at Alang, District Bhavnagar. In the course of its regular business, the petitioner sells materials to various parties from time to time and its purchasers at times pay cash or at times by their own cheques drawn on their own bank accounts or at times the cheques are obtained from other concerned persons with whom they may have transactions. The petitioner is concerned with realisation of the sale price whether the payment is made by one mode or the other. The petitioner's accounts are audited under the Income-tax Act as well as under the Companies Act. The search was initiated under section 132 of the Act in the case of Mahendra H. Shah and Hemant C. Shah and their group concerns. These persons are not in any way connected with the petitioner and the petitioner does not have dealings with them by way of sale of goods or even otherwise. The said persons (hereinafter referred to as “the raidees”), are engaged in the business of finance in the name of their various concerns, but the petitioner had not received any cheque issued by them at the instance of the purchasers of materials from the petitioner or even otherwise. It is further averred by the petitioner that the raidees might have made deposits with the petitioner but such deposits are by cheque, repayment is by cheque, interest payment is by cheque. The petitioner had deducted tax from interest. It is also the case of the petitioner that the deposit, interest payment, TDS and repayments are all shown in the books of account of the petitioner and that the petitioner has no other dealings with the raidees. On August 29, 2000, the Joint Commissioner of Income-tax, Special Range-2, Rajkot, the respondent herein, issued notice under section 158BC read with section 158BD of the Act stating that on perusal of the records of search proceedings in the cases of Mahendra S. Shah and Hemant C. Shah and other group cases, the respondent was satisfied that undisclosed income belongs to the petitioner also and, therefore, the petitioner is required, in pursuance of the provisions of section 158BC(a)(ii), to furnish the return in the prescribed form setting forth the petitioner's total income including the undisclosed income for the block period between April 1, 1989 and December 7, 1999.

3. The petitioner has raised the following contentions in the petition:

(i) There are no facts which entitled the respondent to issue notice under section 158BD, the condition precedent for which is satisfaction of undisclosed income belonging to any person other than the raided person.

(ii) The authorities have not come across any books of account, documents or assets belonging to the petitioner which would indicate that the petitioner had any undisclosed income. The condition precedent for applying section 158BD is not satisfied.

(iii) All the transactions such as deposits, interest payments, tax deduction at source and repayments are duly and correctly recorded in the books of account of the petitioner which are audited and these are the only transactions of the petitioner with the raidees.

4. In response to the notice, affidavit in reply is filed by Mr. Harsh Prakash, Joint Commissioner of Income-tax, Rajkot, the respondent herein, stating as under:

“Search and seizure action was carried out in the case of Shri Mahendra Himatlal Shah and Shri Hemant C. Shah, Bhavnagar, under section 132 of the Income-tax Act on December 17, 1999. During the course of search proceedings and consequent enquiry, it was noticed that both these persons had opened bank accounts in several names and by using these bank accounts they would deposit cash received from ship breakers at Alang and thereafter would pay cheques against this cash to such ship breakers and in the bargain earn commission up to 1.5 per cent. For example, cash received from ship breakers was deposited in the account of ‘A’, ‘A’ would transfer to the credit of account of ‘B’. ‘B’ again would pay to the credit of account ‘C’ and ‘C’ to ‘D’ and so on. Finally, the cheque would be issued by the last holder of the bank account to the ship breakers. So the abovementioned parties were carrying on the business of converting black money into legally accounted funds for a meagre commission. It may be submitted that the abovementioned parties are not assessed to tax and have never filed a return of income so far. The seized materials in the case of the abovementioned parties indicate that the petitioner was involved in converting its unaccounted funds into legally accounted funds in the garb of sales made/loans received by him which were not found to be genuine. The petitioner, Premjibhai and Sons, during the financial year 1998-99 has deposited a sum of Rs. 85,02,994 in cash and received cheques/DDs through the bank account of Shri Mahendra H. Shah in the garb of having made sales to Rajiv Sales Corporation, Mumbai, as also a sum of Rs. 47,19,653 during the financial year 1997-98 in the garb of having made sales to Sheetal Marketing, Ahmedabad, and Rs. 14,40,100 during the financial year 1998-99 in the garb of having made sales to Hiren Enterprise, Mumbai. In these cases the transaction was found not to be genuine. During the post search enquiry and also enquiry made at Mumbai by the investigation wing it was revealed that Rajiv Sales Corporation stated to be residing at 1/6, Sahyadrinagar, Charkop, Kandivli (West), Mumbai, does not exist in such address. In fact, the premises where Rajiv Sales Corporation is stated to be carrying out business was actually a three-storeyed building. The area was a residential area consisting of building No. 1, “Shiv Krupa”. Shri Vasant Vithal Abitekar occupies flat No. 6, only this name plate exists. Rajiv Sales Corporation could not be found here also. Similarly, it was found that genuine sales were not made to Sheetal Marketing, Ahmedabad. As regards Hiren Enterprise, Old Bhagwan Bhuvan, M.G Road, Ghat-kopar (East), Mumbai, the address could be located. The phone number of the party was 5125961. The proprietor's name is Shri Kantibhai. No name plate/board of the party exists, the party used the name Hiran Enterprise in earlier times. The party appeared to be a very small time trader.

That from the facts stated above, it was noticed that Premjibhai and Sons (the petitioner) has converted unaccounted income to the extent of Rs. 1,46,62,747 into legally accounted funds by making bogus sales to Rajiv Sales Corporation, Sheetal Marketing and Hiren Enterprise and credited such funds to its books of account conveniently through bank accounts maintained by Shri Mahendra C. Shah. The above findings are corroborated by a statement of Shri Mahendra C. Shah under section 132(4) of the Income-tax Act wherein he has clearly admitted while answering questions Nos. 2, 10 and 11 that he is in the business of providing cheques against cash.

That the petitioner, Premjibhai and Sons, during the financial year 1998-99 arranged loan of Rs. 2,25,000 by providing cash and obtaining cheques through the bank accounts maintained by Shri Hemant C. Shah in the name of M. Dineshkumar and Co. which is to be brought to tax, under section 68 of the Income-tax Act as undisclosed income during the block period.”

5. The respondent has further averred that prima facie on the basis of the facts gathered during the search, which is corroborated by the statement of Mr. Mahendra H. Shah under section 132(4) of the Act, the petitioner was in possession of undisclosed income during the block period. It is further stated that the petitioner's claim regarding the genuineness of the transactions will be inquired into during the proceedings under section 158BD. The petitioner has filed rejoinder affidavit reiterating the ground that there is no evidence to show that the petitioner has undisclosed income. It is stated that in reality it is a case of cash credit and sales which are recorded in the books of account of the petitioner and are, therefore, disclosed income and could only form the subject-matter of regular assessment under section 143(3). It is further submitted in the rejoinder that the Assessing Officer of the raidees has to make an affidavit of his satisfaction and that the respondent is not the Assessing Officer of the raidees. Neither the Assessing Officer of the raidees has made an affidavit nor does the respondent's affidavit state that the Assessing Officer of the raidees was satisfied under section 158BC. It is also contended that the notice is given for the wrong assessment years 1988-89 to 1998-99 when in law and facts it has to be for the assessment years 1990-91 to 2000-2001.

6. At the hearing of the petition, Mr. J.P Shah, learned counsel for the petitioner, has raised the following contentions:

(i) A notice under section 158BD can be issued only if the respondent had already seized the books of account or other documents belonging to the petitioner and indicating that the undisclosed income belongs to the petitioner. Since no such books of account or documents belonging to the petitioner are seized, notice could not have been issued against the petitioner under section 158BD.

(ii) The Assessing Officer of the raidees has not filed any affidavit to state that he was satisfied that any undisclosed income belonged to the petitioner. In the absence of any such affidavit, the court must proceed on the footing that the respondent herein, i.e, the Assessing Officer of the petitioner issued notice under section 158BD without complying with the condition precedent of satisfaction of the Assessing Officer of the raidees. In view of the absence of the jurisdictional fact, the notice must fail.

(iii) The impugned notice is also bad as it covers the assessment years which are not covered by the definition of the block period as defined by section 158B(a) of the Act.

(iv) All the amounts which are involved in the entries relied upon by the respondent cannot be construed as undisclosed income as the provisions of sections 68 and 69 cannot be applied at the time of issuance of notice under section 158BD, but they can be applied at the time of computing of undisclosed income for the block period. Reliance is placed on the provisions of section 158BB(2) of the Act.

(v) The proceedings under section 158BD can be taken up only after the proceedings under section 158BC against the raidees are completed which has not been done in the instant case.

(vi) The Department has refrained from producing evidence on the basis of which it has come to an adverse conclusion against the petitioner in spite of the averments made in the petition and in the rejoinder affidavit contending that all the transactions of the petitioner with the raidees were recorded in the books of account of the petitioner.

7. Identical contentions were raised on behalf of Priya Blue Industries Pvt. Ltd., the petitioner in Special Civil Application No. 10731 of 2000 ([2001] 251 ITR 615). Yesterday, we have already dismissed the said petition rejecting the aforesaid contentions. Contentions Nos. 1 to 5 are identical and, therefore, for the reasons recorded in the said judgment dated January 24, 2001, we reject the aforesaid contentions. However, since contention No. 6 is based on the facts of the individual case, we propose to deal with the said contention only.

8. Mr. J.P Shah, learned counsel for the petitioner, has vehemently urged that the respondent has not produced any evidence on record on the basis of which they have purported to come to an adverse conclusion against the petitioner. It is submitted that Special Civil Application No. 10396 of 2000 ([2001] 251 ITR 608), filed by Rushil Industries Ltd. was dismissed by this court after considering the facts in that case. Hence, dismissal of the said petition cannot seal the fate of the present petitioner in this case.

9. In this connection, we would refer to the averments made in the reply affidavit, which are already quoted hereinabove. It has been pointed out that in the garb of having made sales to Rajiv Sales Corporation, Mumbai, Sheetal Marketing, Ahmedabad and Hiren Enterprise, Mumbai, the petitioner, Premjibhai and Sons, has converted unaccounted money into accounted money to the tune of Rs. 85,02,994, Rs. 47,19,653 and Rs. 14,40,100 during the financial years 1997-98 and 1998-99. It has been specifically stated on oath that during the post search enquiry made at Mumbai, it was found that Rajiv Sales Corporation alleged purchaser could not be found at the address given by the petitioner and that although the address of Hiren Enterprise could be located, the party used to use the name earlier but no name plate/board of the party exists and that the person called Kantibhai residing at the address in question appeared to be a very small trader. The finding of bogus sales to the aforesaid three parties are also corroborated by the statement of Mahendra H. Shah under section 132(4) of the Act wherein he has admitted that he is in the business of providing cheques against cash. Similarly, the petitioner is found to have arranged loan of Rs. 2,55,000 by providing cash and obtaining cheques through the bank accounts maintained by Hemant C. Shah in the name of M. Dinesh-kumar and Co.

10. The affidavit in rejoinder filed on behalf of the petitioner merely contains vague and bald assertions of the petitioner's own case without denying the case of the respondent that the premises in question of Rajiv Sales Corporation did not exist at Mumbai or that Kantibhai who used the name Hiren Enterprise in earlier time was a very small time trader and that no name place/board of Hiren Enterprise exists at the given address.

11. In view of the aforesaid material on record, it cannot be said that the issuance of notice by the respondent against the petitioner under section 158BD of the Act suffers from the vice of non-application of mind or for want of any material on record. Sufficient material has been disclosed in the reply affidavit to enable the petitioner to meet the case against him. In view of the above discussion, we find no merit in any of the contentions raised on behalf of the petitioner. The petition accordingly fails and is summarily dismissed with costs.

12. Notice is discharged. Ad interim relief granted earlier stands vacated.