2009 (9) TMI 4

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....e following substantial questions of law: i) " That the ITAT is not justified in treating the income voluntarily declared for the period from 1.4.1995 to 7.9.1995 being the period for which the date of filing of the return u/s 139(1) has not expired as undisclosed income which is against the express provisions of Section 158BB(i)(d) of the Income Tax Act, 1961 and thereby taxing it at the special rate of 60% instead of normal tax rates for the said year which is against the express provisions of law and thus unjustified" ii) "That the ITAT was not justified on facts and in law in treating various incomes returned/surrendered as undisclosed income and charging the same to tax at special rate of 60% on the one hand while not allowing co....

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....ept for deletion of some of the amounts, as indicated in the impugned order. 3. We have heard learned counsel for the parties. 4. Learned counsel for the assessee submits that the impugned order is perverse inasmuch as income for the assessment year in which search took place, could not be treated as undisclosed income in view of provisions of Section 158BB(1)(d) of the Act. We are unable to accept the submission. The Tribunal observed: "It was contended that the contention on behalf of the assessee that the income of Rs.5,25,325/- was recorded in regular books of account is not well founded in so for the assessee had not maintained any books of account. Moreover, the income as per assessee's own statement for earlier years was ....

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.... (2004) 266 ITR 401(Pat) to support the contention. It was further contended that once the advance tax is paid by the assessee, the Assessing Officer cannot claim that the income which was subsequently declared by the assessee in the return was undisclosed income. For this reliance has been placed on the decision of the Gauhati High Court in the case of i) Dr. Mrs. Alaka Goswami ii) Dr. Anil Kumar Goswami vs. CIT (2004) 268 ITR 178 (Gauhati). The learned counsel for the assessee further contended that the Assessing Officer has wrongly levied tax on the income of the proprietary concern namely Panchkula Civil Construction @ 60% as against the normal rates. It was further contended that the assessee had pointed out that he was engaged in the ....

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..... Therefore, the contention advanced on behalf of the assessee that he was entitled to credit in respect of the business income recorded in the books of account or disclosed in the returns of income filed before the search is not well founded as the assessee had neither filed any return of income before the date of search nor maintained any books of account.  Therefore, the declared income in the return by the assessee of Rs.3,50,777 /- and Rs.5,25,325/- was rightly assessed by the Assessing Officer as undisclosed income as per the return filed by the assessee and charged to tax @ 60%." 5. From the above finding, it is clear that even though time for filing return had not expired, there was no disclosure by the assessee in any manne....

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.... have already been disclosed prior to search either in the form of return or in the form of entries in books of account or documents maintained in the normal course. Disclosure can be in the form of advance tax also. 7. Learned assessee has counsel for the placed reliance on CIT v.  Jai Parkash , [2008] 7 DTR 177 (P&H), CIT v. Ravi Kumar [2007] 294 ITR 78 (P&H), CIT v. Vimla Khatri [2007] 288 ITR 168 (MP), CIT v.  J.K. Narayanan [ 2007] 293 ITR 179 (Mad), Dr.Mrs.Alaka Goswami Vs.  CIT 268 ITR 178 to submit that assessee should get credit even if income disclosed later, when time for return had not expired. 8. We are unable to accept the submission. The judgments relied upon are distinguishable. In Jai Parkash (supra), t....