TMI Blog2001 (5) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... Singhal is enjoying income from house property and other sources. Shri B.K. Agrawal besides enjoying salary was also in receipt of commission, interest and rent from M/s. Disinfacto Chemical Industries. During the course of search, assets were found as detailed in assessment in para 3 and besides the same, the assessee was found to be owner of house property situated at 43, Cantt Road. While considering the income, the AO observed that remuneration for services rendered by an employee in terms of the contract of employment on percentage of turnover achieved, it partakes the character of salary. In view of the provisions contained in r. 2(h) of Part A of IVth Schedule to the Act. Therefore, the payment of commission was assessed as salary as has been done by the assessee himself for the earlier asst. yrs. 1993-94 and 1994-95. The assessee did not file return of income for the asst. yr. 1995-96 within due dates on account of search and seizure operations as the books of account and other details were in the possession of the Revenue but the AO determined the entire income for the asst. yr. 1995-96 under the head "Salary" and "Commission", the income from house property, capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments are being disclosed by the employer through reports under s. 44AB of the IT Act. Therefore, there is no question of not disclosing or not filing the return of income by the assessee, which could have resulted in escapement of income-tax. It was further submitted that before income could be assessed as undisclosed income under s. 158BC of the IT Act, it should first be covered by the provisions of s. 158B(b) which defines undisclosed income. Therefore, merely because the return was filed late it could not be said that the assessee could not have disclosed the said income. So far as the disclosure of income for the purpose of the Act is concerned this would also mean disclosure by the employer and the employer filed details as per paper book pp. 104 to 113 containing statements under s. 40A(2)(b) of the IT Act and these details were there for the asst. yrs. 1992-93 to 1996-97. Since the assessee was disclosing its income regularly, there is no question of hiding any fact regarding the same. Since the audit of the firm in which the assessee was employed, was not completed as per the provisions of s. 44AB of the IT Act, therefore, the figures of commission to be received from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndisclosed income and if the income does not fall within the ambit of s. 158B then question of computation thereof does not arise in view of the provisions of s. 158BA, which prevails over the procedural provisions of s. 158BB. We are in agreement with the view taken by the Pune Bench of the Tribunal in the case of Prakash Foods Ltd. vs. Dy. CIT (1998) 64 ITD 396 (Pune). This view was also supported by the decision of Delhi High Court reported in (1992) 101 CTR (Del) 179 : (1992) 194 ITR 32 (Del) : 59 Taxman 305 and also by Mumbai Bench decision in the case of Sunder Agencies vs. Dy. CIT (1997) 59 TTJ (Mumbai) 610 : (1997) 63 ITD 245 (Mumbai). The view of the Pune Bench regarding the disclosure that even disclosure by the employer for the purpose of s. 44AB is a disclosure. Moreover, the income of the assessee under these heads is being regularly assessed year after year and for the asst. yr. 1995-96, the assessee has also paid advance tax and TDS leaving a small portion of tax to be paid as self-assessment tax. Therefore, in such circumstances, it cannot be said that the assessee had not or could not have disclosed such income to the IT Department. 5. In our opinion and in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on towards the objection, dt. 18th July, 1996, for making available to the appellant-assessee any evidence or information on the basis of which reference to valuation was made. The assessee also filed affidavit and other documents and evidence running into 7 pages contending that there was no material on record on the basis of which reference could have been made under s. 131(1)(d) of the IT Act. The similar contention was raised before the AO for which reference as made to the reply dt. 26th July, 1996, and the specific mention that no addition or alterations were made during the period relevant for the block assessment, especially when there was no evidence or record in the form of seized material to show that the property was constructed or renovated within the ten years covered by the block period. In view of registered valuer s report, dt. 26th April, 1983, disclosing the additions and alterations made in 1982-83, which was before the DVO additions and alterations could not be considered excepting in 1982-83 unless there was a documentary evidence and other material to do so and in view of the same, the AO could not have considered the cost of additions and alterations arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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