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2018 (11) TMI 1332 - HC - Income TaxBlock assessment u/s 158BC - whether computation of the undisclosed income for the block period has to be done under Section 158BB - Held that:- The assessee made no attempt to prove that he had not received the said amounts, nor disputed individually the documents as received from the SUT hospital. Section 132(4) of the Act raises a statutory presumption, in so far as the statement made under oath being permitted to be used in evidence, which has to be deemed to be true. Unless there is contra evidence to dispel such presumption the statements have an evidentiary value as conferred by the statute. The sworn statement u/s 132(4) in the present case is the evidence relatable to the material or information as available with the Assessing Officer in the nature of the documents recovered from the SUT Hospital. It is also pertinent that the CIT appeals had confirmed only those additions made on account of the undisclosed income from the SUT Hospital and had deleted all the other additions. There was a departmental appeal from the order of the CIT appeals with respect to the additions deleted also, but the Revenue has not chosen to challenge the order of the Tribunal allowing the appeal of the Revenue. The appeal of the Revenue was allowed only with respect to the surcharge levied and the loss claimed on “income from house property”. We do not think that there is any scope for interference in the block assessment as modified by the first appellate authority, affirmed by the Tribunal. The questions of law raised as to whether the Tribunal was correct in having affirmed the additions sustained by the first appellate authority, in the context of there being no evidence recovered from the search in the assessee's premises relatable to the materials or information available with the Assessing Officer is answered against the assessee and in favour of the revenue. Liability to surcharge on tax which was made effective from 01.06.2002 alone - Held that:- On the question of surcharge, a larger Bench of the Hon'ble Supreme Court in 2015 (1) SCC 1 [Commissioner of Income Tax v. Vatika Township P.Ltd.] held that the proviso to section 132 introduced by the Finance Act of 2002 is prospective in operation. There could hence be no surcharge prior to the date on which the said proviso was made effective, i.e. prior to 01.04.2002. The first question is hence answered against the Revenue and in favour of the assessee. Claim for loss on house property can be set off against income computed for the block period - Held that:- AO indicates that the income including the undisclosed income declared in the returns filed for the block period is less than that of the regular income for six years. The assessee has a contention that he can substantiate the loss on income from house property. In any event, the assessee is entitled to make such claim even during the block period as has been held in Assistant Commissioner v. Hotel Bluemoon [2010 (2) TMI 1 - SUPREME COURT OF INDIA]. The question is answered in favour of the assessee and against the Revenue but however, the computation is left to the Assessing Officer. The assessee shall produce the details before the Assessing Officer who shall consider the same and allow it to the extent permissible under the Income Tax Act.
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