TMI Blog1998 (2) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... nature on all officers under the Income-tax Act, 1961 and also ignoring the provisions of section 139(1) of the Act and, therefore, the addition of Rs. 47,723 which is assessed as undisclosed income is liable to be deleted. (ii) The ld. Assessing Officer has erred in assessing the income of Rs. 47,723 as undisclosed income ignoring the Cir. No.717 at Sl. No. 39.3(iv) and other provisions of the Act and also the fact that the particulars of entire income of A.Ys. 1987-88 to 1991-92 was already disclosed while filing the return of income of 1992-93 and as such the addition of Rs. 47,723 as undisclosed income is liable to be deleted. (iii) The ld. Assessing Officer erred in treating the regular income of Rs. 68,256 pertaining to the A.Y. 1995-96 arrived at by regularly maintained books of account. (iv) The ld. Assessing Officer has erred in making assessment on assessee under section 158BC of the Act when there was no search on assessee and no panchnama of any sort was prepared by the revenue in respect of the assessee. 3. Ground Nos. (i) and (ii) relate to the inclusion of non-taxable income for the A.Ys. 1987-88 to 1991-92 amounting to Rs. 47,723 in the undisclosed income co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Act and the documents placed on record. An identical issue has been raised in the assessee's group in the case of Master Deepesh Daga v. Asstt. CIT [IT (SS) A. Nos. 66 to 69 (Indore) of 1996] in which we have examined this issue in detail and after relying upon the Nagpur Bench decision, we were of the view that the income below the taxable limit in the relevant assessment year do not form part of the undisclosed income and the addition on this account towards undisclosed income is unwarranted and uncalled for. Since we have taken a particular view in similar set of facts in the group case of the assessee, we do not find any cogent reason to take a different view in this case. We, therefore, direct the Assessing Officer to exclude the income for the A.Ys. 1987-88 to 1991-92 amounting to Rs. 47,723 from the undisclosed income. 5. So far as ground No. 2 is concerned, the learned counsel for the assessee has strenuously argued that for the A.Y. 1995-96 the return of income declaring income therein at Rs. 68,256 was filed on 30-1-1996 within the period prescribed under section 139(4) of the Act though beyond the period envisaged in section 139(1) of the Act. This income w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch was conducted by the revenue authorities. The assessee's case does not fall within the purview of clause (b) of sub-section (1) of section 158AB as only those income can be given a credit of while computing the undisclosed income, whose return has been filed under section 139 or 147 but the assessment has not been made till the date of search or acquisition on the basis of the income disclosed in such return. 8. We have heard the rival submissions of the parties and carefully perused the orders of the authorities below and the relevant provisions of the Act. Primarily the assessee has raised two legal questions before us, one the income returned under section 139(4) does not fall within the definition of the undisclosed income and the another the returned income should be adjusted while computing the undisclosed income under section 158BB of the Act. For deciding the question whether the returned income for the A.Y. 1995-96 falls within the definition of undisclosed income, we feel it proper to reproduce clause (b) of section 158B of the Act: - "(b) "undisclosed income" includes any money, bullion, jewellery or other valuable article or thing or any income based on any en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount were seized by the revenue authorities and this fact is evident from the assessment order. The assessee has filed the return on 31-1-1996 within the period prescribed under section 139(4) of the Act on the basis of books regularly maintained by her during the course of previous year and seized by the deptt. at the time of search. The returned income was accepted by the revenue authorities while framing the block assessment. It is also evident from the acknowledgement of the return and computation of income that the assessee had only interest income which is mentioned against column 'source' and no business income or otherwise. If the assessee had no intention of filing the return or declaring the income for the purpose of Income-tax Act, there would not be any necessity for maintaining the books of account during the course of previous year. The maintenance of books of account and the computation of income on the basis of books seized by the department is not denied by the revenue. In these circumstances, the contention of the assessee is well founded that he had declared the income in the books of account which were maintained for the purpose of Income-tax Act and for these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 or 147 of the Act but the assessment has not been made till the date of search or requisition on the basis of the income disclosed in such return. The assessee's case does not fall within the category of this clause as the assessee has filed the return under section 139(4) after the search was conducted at the premises of the assessee. From a careful reading of the provisions of section 158BB we find that the Legislature has provided different contingencies for computation of undisclosed income of the block period. Clause (a) deals with the cases in which the assessments are made under section 143 or 144 or 147 of the Act. Clause (a) deals with those cases in which the returns were filed under section 139 or 147 of the Act but the assessment has not been made till the date of search or requisition on the basis of income disclosed in such returns. Clause (c) deals with the cases in which due date of filing of the return has been expired but no return has been filed. Clause (d) deals with those cases in which the previous year has not ended or the date of filing of the return of income under sub-section (1) of section 139 has not expired. Clause (e) deals with the cases in which an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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