TMI Blog2004 (9) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... ted order, for the sake of convenience. 2. The first common issue in all the appeals is as regards to the admitted income of the assessees assessed as undisclosed income by the AO. The briefly stated facts in these cases are that the assessees have paid advance taxes in all the assessment years assessed by the AO and treated the income which falls under the advance tax as undisclosed income while framing the block assessment. The assessees have filed the paper books which contain the challans of advance taxes for the relevant assessment years. A search was conducted on 20th June, 1996, in the premises of Mr. F. Ramesh (one of the assessees) and the returns of income for the respective assessment years by all the assessees were filed after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to make a self-assessment and pay the tax on such income. There cannot be any manner of doubt that when the assessee pays advance tax, the advance tax payment is assessed by the assessee on the basis of self-assessed income. The advance tax reflects the income admitted by the assessee. When the assessee pays the advance tax he discloses his income at the particular point of time, which may or may not be taxable on a subsequent date, on the return submitted by him under s. 139 or under sub-s. (1) of s. 142 because of the assessee s tax planning or he may claim exemption and refund of the tax paid, but for doing so he will have to show the income on which the advance tax is paid and then claim refund or complete exemption, as the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be included in the undisclosed income while framing block assessment. In view of the above, we direct the AO to recalculate the undisclosed income of the respective assessees after going through the advance tax payments and basic exemption as provided in the Act. 5. The next issue in the cases of Sri F. Ramesh, Sri R. Kailash and Smt. R. Sangeetha is as regards to the addition on account of commission payment on NRI gifts. During the course of hearing, the learned counsel as well as the Departmental Representative conceded that there is an element of commission on NRI gifts. The AO has estimated the NRI commission at 5 per cent. When it was pointed out it is excessive, then both the parties agreed that the reasonable commission wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of CIT vs. Vinod Danchand Ghodawat (2000) 163 CTR (Bom) 432 : (2001) 247 ITR 448 (Bom). On the other hand, the learned Departmental Representative relied on the order of the AO. 8. We have heard both the sides and gone through the case law relied on by the assessee s counsel. It is seen that this issue is squarely covered by the Hon ble apex Court in the case of Amiya Bala Paul cited supra, wherein it has been held that the AO has no power to refer the matter to the DVO under any of the provisions of the Act to estimate the cost of construction. Another aspect in this case is that the assessment is based on the DVO s report which is obtained after the search, and the Courts are in unanimity that block assessment cannot be framed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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