TMI Blog2004 (12) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961. 2.1 The learned CIT(A) erred in holding that, the appellant for assessment year 1991-92, having not filed his return of income under section 139, the share of income from M/s. Anant Co. is to be treated as undisclosed income and further erred in holding that since the assessment of the firm was completed before filing of the block return, it is share in assessed income which is to be considered as undisclosed income for the purpose of block return. 2.2 The learned CIT(A) failed to appreciate that since the firm Anant Co., has already filed return under section 139 disclosing the share of the partners, the said share does not fall within the definition of undisclosed income under section 158B( b ). 2.3 The learned CIT(A) ought to have held that since at the relevant time the additions made in the firms assessment for the assessment year 1991-92 were contested before the appropriate appellate authority, it is the income returned by the firm which is to be considered and not the income assessed, which has not become final. 2.4 The learned CIT(A) erred in relying on provisions of section 158BB(1)( c ) for holding the share income of 50% of Anant Co. as undisclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. The income disclosed for assessment year 1991-92 in return of block had to be rectified as the amount inadvertently reported in block return was assessed share of the profit of the firm in place of returned share of the firm. The firm has filed an appeal against the addition made by Assessing Officer in firm s order, so assessed share of income cannot be taken as undisclosed income of the partner i.e. assessee. It was also submitted that in case assessed share of partnership firm for the assessment year 1991-92 is excluded and the returned share of firm is considered, then the rectified undisclosed income comes to Rs. 8,22,507. On this, the tax liability comes to Rs. 4,93,504 against which the assessee had paid self-assessment tax of Rs. 5,24,157. Thus, according to the assessee, self-assessment tax has been paid on rectified returned income. The CIT(A) observed that assessee has not filed a return of income as per provisions of section 139(4) (1991-92). Thus, the share of income earned by the assessee is undisclosed income. As per provisions of section 158BB(1)( c ) where due date for filing of income has expired but no return of income has been filed when the returned income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al v. CIT [1962] 45 ITR 1 (All.). The Learned A.R. also submitted that the facts in the case of Bharatkumar Sekhsaria ( supra ) is not applicable to assessee s case. Moreover, appeal against the same has also been admitted by the Honourable jurisdictional High Court. Apart from this, the learned A.R. also relied on the decision of Ahmedabad Tribunal in J.K. Chaturvedi v. Asstt. CIT [2004] 82 TTJ (Ahd.) 284 wherein similar issue has been claimed to be decided in favour of assessee. In nutshell, it was submitted that facts of assessee s case are only loaded with equality, so the matter be restored to CIT(A) to decide on merit since rectification application has not been disposed of and in alternative self-assessment tax liability has already been paid. On the other hand, the learned D.R. submitted that provisions of section 249(4)( a ) are mandatory and relevant provision should be given strict interpretation. The ratio of decision relied by the A.R. is not of any help to the assessee. The assessee is not justified in raising the ground of absence of opportunity of hearing by the authorities below. The Learned D.R. heavily relied on the ratio of decision in the case of Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id before filing of the appeal, the right to appeal was not destroyed. It was only treated as having been filed on the day the tax is paid. The Hon ble Supreme Court in the case of Hoosein Kasam Dada (I) Ltd. v. State of M.P. AIR 1953 SC 221 has observed that while considering similar decision relating to change of law affecting the right of appeal and requiring payment of tax admitted as condition precedent for entertaining the appeal the right of appeal is merely not a matter of procedure. It is a matter of substantive right. This right of appeal, from decision of inferior Tribunal to superior Tribunal, becomes vested in a party when proceedings are first initiated in and before the decision is given, be an inferior Court. A pre-existing right of appeal is not destroyed by virtue of an amendment which is not made retrospectively by expressed words or necessary intendment. The Ahmedabad Bench of ITAT in the case of J.K. Chaturvedi ( supra ) has taken liberal view on the issue. We find that the Nagpur Bench of Tribunal held in the case of Sanmukhdas Wadhwani ( supra ). "In Search and Seizure action under section 158BC during - Block assessment in search cases, - Commission ..... 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