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TMI Blog2021 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... t the block assessment order passed by the Assessing Officer (AO). The block period begins from 01.04.1985 and ends on 27.11.1995, involving assessment years from 1986-87 to 1996-97 (upto 27.11.1995). The assessee is the wife of Shri Vikram A. Doshi, a promoter of the Atco Group of companies. She is stated to be a shareholder in most of the Atco Group of companies. Search u/s 132 of the Act had taken place at her residential premises along with other relatives and Atco Group of companies on 27.11.1995. Consequently, notice u/s 158BD was issued to the assessee on 15.02.1996, in response to which she filed a return showing income of Rs. 2,43,659/- for the period 01.04.1995 to 27.11.1995. Undisclosed income declared by her was Nil. However, the AO determined the total undisclosed income at Rs. 30,30,919/-. The assessee filed appeal against the block assessment directly before the Tribunal. The grounds raised inter-alia by the assessee in that appeal related to the addition made by the AO of the following credits reflected as on 31.03.1990 : a) Kashiben Dungershi Rs. 1,00,000/- b) Surajben Shah Rs. 1,50,000/- c) Daoodayal Mundhra Rs. 4,50,000/- d) M/s Bharat Trading Co. Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 273 of 2000 passed an order dated 26.02.2002 observing as under : "5. Mere glance at the impugned order would show that no reasons are to be found in the entire order of the Tribunal as to why the alternate contention of the appellant/assessee was accepted by the Tribunal without rejecting much less disclosing substantive contentions raised by the assessee. No reasons are to be found in support of the findings recorded by the Tribunal while accepting the alternate submission of the assessee. * * * * * * 7. Reading all the impugned orders together would prima facie show that there is no appreciation of the substantive contention of the appellant by the Appellate Court/Tribunal which is the final court for finding of fact. * * * * * * 11. We, in the above backdrop, are of the opinion that interest of justice would be met by setting aside the impugned orders of the Tribunal impugned in all these appeals to the extent they are challenged in respective appeals." 4.1 Thus the Hon'ble High Court held that (i) the Tribunal has not considered the first two substantive grounds raised by the assessee one on the ground of facts and the other on the ground of law, (ii) the Tribunal str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on had accrued to the assessee only in the assessment year 2002-03, when the right to receive these amounts had fructified. On said basis, the AO reopened the assessment for AY 2002-03 by issuing notice u/s 148. The Tribunal held that "in pursuance of order passed by the Tribunal that certain income was taxable in relevant assessment year and not in earlier years, in terms of Explanation 2 to section 153, the Assessing Officer rightly initiated reassessment proceedings for assessment year in question in order to bring said income to tax even if there was no specific direction of Tribunal to reopen the assessment." In Hanemp Properties (P.) Ltd. (supra), the Tribunal held that the jurisdiction of the Assessing Officer u/s 158 BC and 143(3) is separate and what is once assessed u/s158BC cannot be assessed u/s 143(3) and vice verse. In Hope (India) Ltd. (supra), the Hon'ble Calcutta High Court held that where any income was deleted from an assessment in higher forum on ground that it was not income of that year, the AO had jurisdiction to initiate proceedings u/s 147 to assessee as income of another year without any limitation applying to issue of notice u/s 148 or to completion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is protected by the provisions of section (2) to section 150 of the Act. The same is reproduced below: "Section 150 (1) ........ (2) The provisions of sub-section (1) shall not apply in any case where any such assessment, reassessment or re-computation as is referred to in that sub-section relates to an assessment year in respect of which an assessment, reassessment or re-computation could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limiting the time within which any action for assessment, re-assessment or re-computation may be taken." 6.4 As mentioned earlier, the Hon'ble Bombay High Court in the instant case has observed that "there is no appreciation of the substantive contention of the appellant by the Tribunal, which is the final code for finding of fact." Therefore, we have to decide the substantive contention of the assessee, instead of agreeing with the contentions of the Ld. DR that Tribunal may consider directing the AO to initiate the proceedings u/s 148(1) of the Act. The instant case is thus distinguishable from the case-laws relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n already disclosed cannot be a matter of block assessment. The Assessing Officer cannot indulge in roving enquires regarding the issue that has already been disclosed in the books of accounts and placed before the departments. All such enquiries and investigations should be made by the Assessing Officer in a proceeding known to the Income Tax Law other than the block assessment proceedings. Therefore, we are inclined to accept to the substantive ground raised by the assessee on the question of law that whether the loans treated by the Assessing Officer as unexplained could be treated by the Assessing Officer as unexplained could be treated as forming part of the undisclosed income. We hold that the loan amount cannot be made a subject matter of a block assessment on the basis of the review made by the assessing authority." 6.6 Facts being identical, we follow the above order of the Co-ordinate Bench. Also we are guided by the ratio laid down by the Hon'ble Bombay High Court in the case of Rakesh N. Dutt (supra) and Lotus Investments Ltd. (supra). Before concluding, we remind ourselves of the following oft-quoted observation of Bhagwati N.H., J ( as His Lordship then was) in A.V. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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