9911796707
TMI Blog1986 (12) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 1981, during which certain papers, valuable articles were seized from which it was found that the assessee advanced Rs. 4.5 lacs to one Mr. Duggal in 1972. The amount was treated as un-explained income of the assessee and brought to tax under the Income-tax proceeding for the asst. yr. 1972-73. He mentioned also that this amount was also subjected to wealth tax for the asst. yrs. 1972-73 to 1977-78. He pointed out that however this amount was not included in the original assessment made for the year under consideration, which was an apparent mistake from the record. Accordingly, the WTO issued notice under s. 35 to which there was no response from the assessee initially. After being given sufficient opportunity the assessee submitted a written reply contending that the mistake of non-inclusion of the above amount for the year under consideration was not a mistake apparent from the record and hence s. 35 would not apply. It was also submitted that without prejudice to the above contention, the assessee mentioned that the said amount was included as income in the asst. yr. 1972-73 and the tax, liability of Rs. 4,39,875 was determined as payable by the assessee and, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... search also included the said amount of Rs. 4.5 lacs. The WTO, therefore, inferred that the said amount have not been sent away, but was available with the assessee till the asst. yr. 1982-83, which means that the same amount was still available as on 31st March, 1978 being the valuation date for the year under consideration. He, therefore, concluded that the said mistake of non-inclusion of the above sum, was a mistake apparent from the record. 6. He also considered the contention of the assessee for deduction of Rs. 4,39,875. according to the WTO the concealed income was detected only on 16th July, 1981 and therefore, the liability to pay tax on the income arose only after the date and no such liability was in existence as on 31st March, 1978. He, therefore, declined to allow this deduction. He also held that even otherwise such liability which might have arisen on 31st March, 1972 and such liability was outstanding on the valuation date for more than one year, which cannot be allowed under s. 2(m). He, therefore, completed the rectification order by including the above sum. 7. The assessee took up the matter before the CWT(A) and contended that under s. 35 the amount which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g his status and life style. It is vehemently urged on behalf of the assessee that there was no actual cash available so as to justify the above order of the WTO. It is submitted, therefore, that the order of the CWT(A) may be upheld. 10. We have gone through the orders of the authorities below and the other papers placed before us for our consideration. We have gone through the provisions of the above sections both income tax as well as wealth-tax for our perusal. We find that there is sufficient force in the arguments made on behalf of the Revenue. The CIT passed order under s. 132(12) which was on an application of the assessee against the order passed by the ITO under s. 132(5) of the ITA. Under this section, the ITO has to pass order within 90 days of the seizure, an order estimating undisclosed income in a summary manner to the best of his judgment on the basis of the materials as are available with him. The assessee, who objects to such order may file an application to the authorities concerned who can pass such orders as it thinks fit. The provisions of s. 132(5) of the ITA comes into play when money or cash was found and seized as the ITO concerned has ascertained out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement was accepted without enquiry or satisfaction disclosed amount represented income of the assessee and therefore, the certificate granted by s. 215 of Finance Act, 1965, would not prelude an examination, although such declaration may be admissible piece of evidence but not conclusive. this is the view of the Hon'ble Allahabad High Court (Full Bench) in the case of Pioneer Trading Syndicate vs. CIT (1979) 12 CTR (All) 349 (FB) : (1979) 120 ITR 5 (All) (FB) which is approved by the Hon'ble Supreme Court in the case of Jamnapresad Kanyalal. Similar is the view of the Hon'ble Guahati High Court in the case of Radheshyam Tiberwall vs. CIT (1980) 125 ITR 393(Gau), in which it was held on the facts of that case that in the assessment proceeding of voluntary declarations made and certificate granted by the Commissioner, are relevant and admissible piece of evidence, but neither final nor conclusive. 12. In the recent case before us, the order of the WTO under s. 35 of the WTA, on the fact of the case, narrated earlier was cancelled merely on the ground that the CIT under s. 132(12) of the ITA has held that the above sum of Rs.4.5 lacs would not be included in the wealth-tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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