TMI Blog2006 (8) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... eal before us. Facts of the case in this respect briefly are that there was a search under section 132 conducted at the office premises of the assessee on15-12-1999. Thereafter, the learned Assessing Officer served a notice under section 158BC upon the assessee on3-3-2001. In response the assessee filed its return of undisclosed income on19-3-2001declaring undisclosed income at Rs. 1,46,000. However, the assessee did not paid any tax on this self-admitted undisclosed income. The Assessing Officer completed block assessment order under section 158BC on28-2-2002at total undisclosed income of Rs. 2,42,23,059. Aggrieved the assessee instituted an appeal before the learned CIT(A) on28-2-2002. The learned CIT(A) found that the assessee had not pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome filed under section 158BC. There was no power given to the appellate authority for condoning such default on the part of the assessee when the return had been filed and the income had been declared therein. Based on this reasoning, the learned CIT(A) dismissed the assessee's appeal as un-admitted. 3. During the course of hearing before us the learned AR of the assessee stated that the assessee had already informed the learned Assessing Officer during the course of assessment proceedings that the sum of Rs. 1,46,000 had already been offered to tax during the course of regular assessment proceedings and the same had been mistakenly shown once again in the block return of undisclosed income. Thus the same amount had been offered to tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd retracted from the sum of Rs. 1,46,000 included in the block return of undisclosed income. In support of this contention, the learned counsel relied upon the decision of ITAT, Nagpur Bench in the case of Dy. CIT v. Sanmukhdas Wadhwani [2003] 85 ITD 734. He also placed reliance on the judgment of the Supreme Court in Hasimara Industries Ltd v. CIT [1998] 231 ITR 842. The learned counsel also argued that the assessee had submitted before the CIT(A) that there was no admitted tax payable under section 249(4). The learned CIT(A) had wide powers of condonation and even if he held that there was requirement to pay tax on the sum of Rs. 1,46,000, he should have granted the assessee an opportunity to make good this deficiency. The learned DR arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Hon'ble Delhi High Court in CIT v. Champaklal Dalsukhbai [1971] 81 ITR 303 that the Assessing Officer has to consider taxability even if the assessee had himself included it in the return of income. He further referred to the judgment of the Hon'ble Supreme Court in Pullangode Rubber Produce Co. Ltd. v. State of Kerala [1973] 91 ITR 18 that if the assessee could show from the records that the admission of an income was erroneous, the admission made earlier was not binding upon the assessee. He referred to the judgment in CIT v. Shamlal Salram Gurbani [2001] 249 ITR 501 (Bom.) and argued that there was no bar on assessed income being at an amount lower than the returned income. Reference was made to Tribunal decision al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny previous year included in the block period. 8. The combined effect of the provisions of sections 158BA(3), 158BB(1)(a) and Explanation (a) to section 158BA(2) is that what has already been included in a regular assessment under section 143(3) cannot be included in the block assessment under section 158BC. As to the case of the assessee before us this issue was raised by the assessee during the course of block assessment proceedings and the learned Assessing Officer did entertain this plea but on consideration he found that the contentions of the assessee in that behalf were not acceptable. 9. As the matter stands the assessee had submitted before the Assessing Officer that the income mistakenly shown in the return by the assessee und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of regular assessment proceedings under section 143(3) and the tax thereon had already been paid before the assessee filed appeal against block assessment order before the learned CIT(A). If the learned CIT(A) finds answer to these questions in favour of the assessee, the taxes paid by the assessee in the regular assessment proceedings tantamount to tax already paid in relation to admitted income as per return filed under section 158BC and, therefore, the learned CIT(A) would be required to decide the assessee's various grounds of appeal on merit. If, however, the learned CIT(A) finds the factual position otherwise, he would be entitled to dismiss the assessee's appeal un-admitted in view of the provisions of section 249(4)(a) after discus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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