TMI Blog1998 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ure Scheme (hereinafter called "the Scheme"), came into force with effect from July 1, 1997. Under that Scheme any person could make a declaration in respect of any income chargeable to tax under the Income-tax Act, 1961 (hereinafter referred to as "the Act"), which has not been subject to tax earlier. Section 67(1) of the Scheme provides that the declarant could file a declaration without paying the tax but such tax has to be paid within three months from the date of filing of the declaration with simple interest at the rate of 2 per cent. per month for the period from the date of filing of the declaration to the date of payment of tax and document in proof of such payment is to be filed within the said period of three months. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker No. 175 of the Allahabad Bank before it came to the notice of the search party. He further submitted that a prohibitory order under section 132(3) has been passed on October 1, 1997, itself, by the authorised officer, prohibiting Dhirajlal J. Hemani, Smt. Manjula D. Hemani, Nilesh D. Hemani, Meena N. Hemani, Parag D. Hemani and Smt. Babita D. Hemani from removing, parting with or otherwise dealing with the articles lying in any locker of the bank. One more order under section 132(3) of the Act was passed specifically in respect of locker No. 175 of the Allahabad Bank and served on the bank manager on the same date. It could not be served on October 2, as it was a holiday. This order could not be served on the petitioner and other memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Direct Taxes is binding on the Assessing Officer, though it may be contrary to the provisions of the Scheme. My answer will be obviously in the negative. Therefore, before we proceed further, it is to be seen whether the opinion of the member of the Board is in conformity with the provisions of section 64(2)(ii) of the Scheme coupled with the provisions of the Income-tax Act, 1961. Clause (ii) of sub-section (2) of section 64 of the Scheme reads as under : "(2) Nothing contained in sub-section (1) shall apply in relation to---... (ii) the income in respect of the previous year in which a search under section 132 of the Income-tax Act was initiated or requisitioned under section 132A of the Income-tax Act was made, or survey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 3, 1997, as well as the petitioner has disclosed his income on the same day, but at what time search warrants are signed, and what time the declaration is made, there is no material on record to give finding whether the declaration under the scheme was made prior to the signing of the search warrant. But it is a fact that fresh search warrants are also issued on October 3, 1997 and the order under section 132(3) issued on October 1, 1997. When the assessee claims that he has made a declaration prior to the initiation of search proceedings the burden lay on him to prove it. In view of the material on record, the petitioner has failed to show that he has disclosed the concealed income prior to the initiation of search proceedings. Mere c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly, the amount of Rs. 1,35,00,000 was not subjected to tax and was for the first time disclosed by the petitioner on October 3, 1997, but it came to the notice of the authorised officer of the Department that there is a concealed income lying in locker No. 175 with the Allahabad Bank, Peddar Road Branch, Mumbai, and also that the amount lying in the locker was not disclosed by Dhirajlal or by any member of his family prior to October 1, 1997, till it came to the notice of the authorised officer. Therefore, once a prohibitory order is issued, in respect of an amount lying in locker No. 175, under section 132(3) it cannot be said that in respect of that concealed income no search proceeding was initiated under section 132. Clause (ii) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that concealed income in the locker has come to the notice of the authorised officer on October 1, 1997, while the disclosure has been made on October 3, 1997. The search proceeding in the case of Dhirajlal initiated, when the search warrant signed on September 30, 1997, Dhirajlal is one of the owners of the locker No. 175, Allahabad Bank, Peddar Road, Mumbai. In these circumstances, the petitioner cannot be allowed to disclose the concealed income of his father or in the case of any other member of his family. The impugned notice reads as under : "In pursuance of the provisions of section 158BC of the Income-tax Act, 1961, you are requested to prepare a true and correct return of your total income including the undisclosed income.... ..... X X X X Extracts X X X X X X X X Extracts X X X X
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