TaxTMI 
TaxTMI 
1998 (7) TMI 132
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....f income for the assessment years 1988-89, 1989-90, 1990-91, 1992-93 and 1993-94 as envisaged under section 139. Hence the total income for the five years aggregating to Rs. 2,62,338 is treated as the undisclosed income of the block period under section 158BB(1)(c). The total undisclosed income of the block period was mentioned in the assessment order as under: Previous year Amount 1987-88 Rs. 75,080 1988-89 Rs. 54,745 1989-90 Rs. 55,053 1991-92 Rs. 37,375 1992-93 Rs. 40,085 -------------- Total &n....
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....il" Section 158BB(3) states that the burden of proving to the satisfaction of the Assessing Officer that any undisclosed income had already been disclosed in any return of income filed by the assessee before the commencement of search or of the requisition, as the case may be, shall be on the assessee. In the present case admittedly the returns for the assessment years 1988-89, 1989-90 and 1990-91 were filed on 29-1-1993 and for the assessment years 1992-93 and 1993-94 were filed on 19-5-1995, i.e. well before the commencement of the search on 6-2-1996. Further in the following assessment years the assessee has claimed deductions under Chapter VI-A as under:- Assessment year Section Amount 1989-90 80CCA Rs. 10,000 1990-91 80CCA &....
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....hat as no valid returns were filed by the assessee under section 139 of the Act, the income declared in the belated returns cannot be considered by the Assessing Officer. While I confirm the action of the Assessing Officer on this point, with reference to the deductions claimed under section 80CCA for the assessment years 1989-90 and 1990-91 and deduction claimed under section 80G for the assessment year 1990-91, the assessment has to be set aside to the Assessing Officer for redoing it de novo in the light of the discussions made above, after, however, giving opportunity of being heard to the assessee and also duly considering any material and stand that may be relied upon and taken by the assessee before passing a speaking order in accordance with law. 4. In the result, the appeal of the assessee is allowed for statistical purposes. REFERENCE TO THE HONOURABLE THE PRESIDENT UNDER SECTION 255(4) OF THE INCOME-TAX ACT, 1961. As we differ in opinion on the point in adjudication in this case after due deliberations between us, we refer to the Hon'ble the President of the Income-tax Appellate Tribunal for hearing by one or more of the other Members of the Tribunal to be const....
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....of law, resulting thus in annulment of the assessment order for the reasons particularly detailed in para-5 at page-2 of the proposed order of the Vice-President? (b) opining that as no valid return was filed by the assessee under section 139 of the Act, the income declared in the belated returns cannot be considered by the Assessing Officer and while so confirming his action on this point, with reference to deductions claimed under section 80CCA for the assessment years 1989-90 and 1990-91 and deduction claimed under section 80G for the assessment year 1990-91- for a decision de novo by the Assessing Officer through a speaking order after giving opportunity of being heard to the assessee, for the reasons particularly detailed in paras-2 and 3 at pages 5 and 6 of the dissenting order of the Judicial Member?" Accordingly the appeal was heard by me and my decision on the point of difference is being given as below: 2. The assessee is a H.U.F. (Specified). Consequent to the search under the Income-tax Act which took place in the residential place as well as business premises of the assessee on 6-2-1996, a notice under section 158BC of the Income-tax Act was issued asking f....
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....essment years are admittedly outside the block period as stated in the assessment order. 4. The Hon'ble Vice-President further referred to the method of computation of "undisclosed income" as provided under section 158BB(1)(e) of the Act. The Hon'ble Vice-President further stated that in the present case the assessee had admittedly filed the returns for the assessment years 1988-89, 1989-90 and 1990-91 on 29-1-1993 and for the assessment years 1992-93 and 1993-94 returns were filed on 19-5-1995, i.e., well before the commencement of the search on 6-2-1996. The Hon'ble Vice-President further stated that the impunged assessment order is not a speaking order passed after the application of mind by the Assessing Officer to the relevant provisions of law. He also noted that the assessee had claimed certain deductions under Chapter VI-A for the assessment years 1989-90 and 1990-91. These were however not considered by the Assessing Officer in the impunged assessment order. He stated that he has totally disregarded the provisions of section 158BH. On the above facts and circumstances of the case, the Hon'ble Vice-President set aside the impugned assessment order and allowed the a....
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.... relied on the definition of undisclosed income as provided in section 158B(b). He has strongly argued that inasmuch as the assessee itself has shown the entire income considered in the impugned assessment in the returns of income filed by it, it cannot be said the said income has not been or would not have been disclosed by the assessee to the department. He thus strongly argued that the income considered in the impugned assessment does not fall within the ambit of definition of "undisclosed income", as provided under section 158B(b). Referring to the provisions of sub-section (3) of section 158BB, the learned counsel for the assessee has argued that the assessee discharged its onus provided in the said sub-section inasmuch as the so called undisclosed income had already been disclosed by the assessee by filing returns of income although in belated and invalid manner, much before the date of search. Lastly the learned counsel for the assessee strongly relied on the order in the ITD, Pune Bench in the case of Parakh Foods Ltd. v. Dy. CIT [1998] 64 ITD 396. In that case also, it was held as below:- "if prior to the date of search the assessee has disclosed particulars of the i....
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....ered in the assessment, has not at all been stated clearly in the assessment order. Only after study of other materials, one can come to the finding that the figures of undisclosed income as considered in the impugned assessment merely represent the income as declared by the assessee itself in the returns of income filed by it in the ordinary course for the different years although is belated and invalid manner. 11. The learned counsel for the assessee appearing before me has admitted that so far as the assessee (HUF) is concerned it does not maintain any books of account. Apart from the question as to whether the income as considered in the impugned assessment, is not of the nature as specified in the definition of 'undisclosed income' as provided in Sec. 158B(b) it is also clear that for some income to the undisclosed income, it will be required that the said income was not or would not have been disclosed by the assessee to the Department. In the instant case, there is no doubt about the fact that the assessee itself declare the aforesaid income for all the years in the returns filed by it. The returns might be invalid but the information contained therein showing earning of ....