TMI Blog2009 (9) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to undisclosed income is perverse - 852 of 2008 (O&M) - - - Dated:- 1-9-2009 - ADARSH KUMAR GOEL and DAYA CHAUDHARY, JJ. Mr. S.K. Mukhi, Advocate, for assessee Ms. Urvashi Dhugha, Standing Counsel for revenue. JUDGMENT ADARSH KUMAR GOEL, J. - This appeal has been preferred by the assessee under Section 260A of the Income Tax Act, 1961 (for short, "the Act") against the order of Income Tax Appellate Tribunal, Bench 'B', Chandigarh, in ITA No. 1132/Chandi/1996 for the block period from 1.4.1985 to 7.9.1995 dated 28.2.2008, proposing to raise the following substantial questions of law: i) " That the ITAT is not justified in treating the income voluntarily declared for the period from 1.4.1995 to 7.9.1995 bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered income wherein due taxes have been paid and thus the order of the ITAT being on the basis of conjectures and surmises relying upon rough drafts indicating transaction but without any evidence corroborating or confirming the same." 2. Search was conducted at the business and residential premises of the assessee on 7.9.1995 resulting in seizure of cash, FDRs and other documents. In response to notice under Section 158BC, the assessee filed return as per Section 44AD. Assessment was made in respect of undisclosed income. On appeal, the assessment was affirmed except for deletion of some of the amounts, as indicated in the impugned order. 3. We have heard learned counsel for the parties. 4. Learned counsel for the assessee sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IVPs, loans etc. It was further contended that in respect of the alleged loan, the assessee had been given sufficient opportunity to produce the creditors which he failed. The addition was thus made on sound basis, it was contended. In counter reply, the learned counsel for the assessee contended that the Assessing Officer was required to give credit for the income up to assessment year 1993-94 to the extent the income which was not chargeable to tax. Reliance was placed on the decision of the Patna High Court in the case of CIT and another vs. Smt. Lily Tobias (2004) 266 ITR 401(Pat) to support the contention. It was further contended that once the advance tax is paid by the assessee, the Assessing Officer cannot claim that the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. At the very outset, we would like to make it very clear that the statement of the learned counsel for the assessee that the assessee was a regular tax payer before the date of search, is contrary to the facts on record and no material has been placed before us to support the claim. On the contrary, the learned DR after verification of records has made a statement that the assessee was neither income-tax assessee nor wealth-tax assessee before the date of search. The assessee had also not maintained any books of account in respect of his business or for his income. Therefore, the contention advanced on behalf of the assessee that he was entitled to credit in respect of the business income recorded in the books of account or disclosed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...........xx......... (c) ...xx.......xxx.......x.xx...........xxx.............. (d) where the previous year has not been ended or the date of filing the return of income under sub-section (1) of Section 139 has not expired, on the basis of entries relating to such income or transactions as recorded in the books of account and other documents maintained in the normal course on or before the date of the search or requisition relating to such previous years: 6. The scheme of Section 158BB (1)(d) is that the assessee may get credit for the income which may have already been disclosed prior to search either in the form of return or in the form of entries in books of account or documents maintained in the normal course. Disclosure can b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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