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TMI Blog2016 (4) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... s order dated 19.4.2010 in I.T.A. Nos. 368 and 369 of 2009 has remitted the matter to the Tribunal for a consideration of the submissions made by the assessees afresh with the following directions:- "Having considered the arguments advanced by the learned counsel for the parties, we are of the view that these appeals require re-consideration by the Tribunal. The reconsideration is particularly warranted because the jurisdictional issue, with regard to jewellery in I.T.A. No. 368/2010 requires a finding to be given by the Tribunal before we can examine such an issue on merits. In so far as the household goods are concerned, we find that the Tribunal should examine as to whether these goods pertained to the block period or not and as to whether such goods could not have been acquired by the assessees from their regularly assessed incomes. For these reasons, we set aside the impugned order to the extent of the findings with regard to the jewellery and household goods and remit the matter to the Tribunal for a consideration of the submissions made by the appellant afresh." 2. The first issue for consideration, which is common in both the appeals, relates to addition on account of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal Gutka and Lalwani group of cases. The Appellant is husband of Poonam H Keshwani, who is sister of owners of Vimal Gutka Group. It was submitted that the appellant was assessed to Income Tax for the last several years and filed NIL undisclosed income in the prescribed return form no 2B on 21.07.2004, which was assessed at Rs. 7,44,243/- by the Assessing Officer. The undisclosed income as per the Assessment Order comprised the following:- (i) Unexplained Jewellery 5,19,243/- (ii) Unexplained expenditure on foreign travel 75,000/- (iii) Unexplained investment in movable assets 1,50,000/- 6. It was submitted that as per Annexure J1 of Panchnama dated 23.10.2002, jewellary amounting to Rs. 4.96,493/- and silver utensil of Rs. 22,750/- were found from locker no 270 with UTI Bank, Gotry Road, Baroda. It is important to note that the said locker was having first name as Mrs. Poonam H Keshwani, wife of the appellant and Haresh A Keshwani, appellant as second name. The valuation report of government Valuer available on page no 16 of the paper Book dated 23.10.2002 clearly mentioned that owner of the items in Locker no 270 UTI, Gotry Road, Baroda belongs to Smt. Poonam H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apter XIV-B of the Income Tax Act, 1961 relating to block assessment makes it clear that in view of specific provisions contained in section 158BA, the assessment of undisclosed income is made as a result of search. It is only when a search is conducted under section 132 or books of account, other documents etc. are requisitioned u/s 132 in the case of any person that the Assessing Officer proceeds to assess the undisclosed income in accordance with the provisions of Chapter XIV-B. In the case of Verma Roadways vs ACIT TTJ 728 (Allahabad Tribunal), the Allahabad Bench of the Tribunal, while considering a similar issue has held that validity of a search and seizure u/s 132 has to have a clear cut nexus with the warrant of authorization, which is the main foundation of entire proceedings on search and seizure. In the present appeal, the warrant of search was in the name of Shri Harish Ashumal Keshwani whereas the locker in which the jewellery was found (Locker No. 270) was in the name of Smt. Poonam H. Keshwani as the first holder and her husband Shri Harish Ashumal Keshwani was only the second holder. Further, the search warrant in the name of the assessee Shri Harish Ashumal Keshwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undisclosed income within the definition given under section I58BB can be brought to tax under this Chapter by computing such undisclosed income on the basis of evidence, material or record found at the time of search. If no evidence, document, books or material is found at the time of search, income cannot be computed under this Chapter. Thus, the income which is not based on the of evidence or material found at the time of search, i.e., based merely on hypothesis, surmises, conjectures or estimate, cannot be brought to tax under this Chapter. The income which is not undisclosed, i.e., income which has been duly disclosed in the assessee's books maintained in the regular course of business can also not be brought to tax under this Chapter. Even an asset or transaction which is duly entered in the books maintained by the assessee regularly and disclosed to the department can also not be regarded to be undisclosed income. The assessment under this Chapter is in addition to regular assessment and income assessed will not be included in regular assessment. This Chapter cannot be regarded in substitution of regular assessment or in substitution of the powers available to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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