TMI Blog1997 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... On March 30, 1990, the petitioner filed his return for the assessment year 1989-90 showing total income of Rs. 19,470. The assessment for the assessment year 1989-90 was completed under section 143(3) of the Act on a total income of Rs. 1,61,980 whereby an addition of Rs. 1,42,510 was made for undisclosed purchase, sale and profit detected by the Assessing Officer and also the undisclosed capital invested for purchasing cycle and cycle parts and also undisclosed and unexplained investment made in construction of a house. On the basis of such assessment, additional income of Rs. 18,380 of suppressed sale and undisclosed capital investment of Rs. 60,000 were added to the income of the accused petitioner. Making a detailed assessment after tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this time the total income of the appellant-petitioner was assessed at Rs. 1,30,555. Being aggrieved of the aforesaid assessment dated December 4, 1992, the petitioner preferred an appeal before the Commissioner of Income-tax (Appeals), Ranchi, being Income-tax Appeal No. 361/RAN/TH of 1992-93. The appellate court in terms of order dated March 18, 1993, allowed the appeal in part and deleted the addition of Rs. 38,122 only on account of undisclosed investment. The petitioner against the appellate order preferred appeal before the Income-tax Appellate Tribunal, Patna Bench, Patna, Jamshedpur Camp, being Income-tax Appeal No. 847/PAT of 1992. The Income-tax Officer also preferred an appeal, before the Income-tax Appellate Tribunal, Patna Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent over construction of market complex was deleted. Thus, from the facts and circumstances it remains that the assessment which was made by the Assessing Officer has not been fully confirmed by the Income-tax Appellate Tribunal but some of which had been modified and some has been deleted but the return filed by the petitioner was found to be not correct and as such the fact remains that the income was shown low for the purpose of evading of tax even after the appellate order also. Mr. Jai Prakash, counsel appearing for and on behalf of the petitioner, submitted that the complaint petition which was filed on the original assessment order of the Income-tax Officer after taking sanction from the Commissioner does not remain as it is afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanction cannot be maintainable. His contention is that application of mind was on the basis of the amounts alleged to be undisclosed by the assessee but when the appellate order has restricted those amounts then there is every possibility that the sanctioning authority might not give sanction on the basis of the appellate order on the assessment, I do not find any force in such submission. Sanction has been given after application of mind regarding evading of tax. The question of amount undisclosed might not be of much relevance. The broad consideration was regarding the suppression of real income and filing of false return/statement by the assessee. That suppression of real income remained even after the appellate order also. Only becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, on the basis of the assessment order, a complaint was filed under sections 276C and 277 of the Act but the appellate court had set aside the assessment order regarding estimated value but in the appellate judgment, there was an observation to the effect that the various returns filed by the assessee and the discrepancy therein were not properly explained and that the books of account were not reliable and had rightly been rejected by the Assessing Officer. The prosecution was challenged when the appellate court had set aside the assessment of the estimated value to the effect that the prosecution was not maintainable but the Division Bench in Indian Builders [1995] 211 ITR 997 (Patna), held that in view of the observations made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Explanation (iv) to that section. Section 277 of the Act was not at all considered by the learned single judge and, in that view of the matter, I must hold that the judgment of the single judge may be considered as per incuriam as not being considered in its proper perspective. In that case, as regards valuation invested for the purpose of construction of house was being annulled by the appellate court but there was other concealment also but those had not been discussed or considered. When the assessment had been made disclosing concealment of income and such assessment has only been modified to the extent of quantum and deleting some, then in no way it takes away the authority of filing complaint under the penal provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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