2004 (12) TMI 36 - HC - Income Tax

Legality and validity of the block assessment of undisclosed income on the ground that there was no search on the assessee but search was on another person - if the same officer happens to be the Assessing Officer in the case of such other person also, there is no necessity to hand over the file. In this case, by virtue of the transfer of the case file, the Assistant Commissioner, Calicut, is competent to proceed to make the block assessment, under section 158BC read with section 158BD of the Income-tax Act. The arguments advanced by learned counsel appearing for the assessee that the officer to whom the file was transferred could only make a regular assessment and not a block assessment, is without any force - The fact found by the AO as confirmed by the Tribunal that the assessee did not file any return offering this item for taxation and notice u/s 158BD was served only by the end of January 1998, are not disputed and are pure questions of fact. When the assessee has thus failed to file any return there is no merit in his contention that the said amount shall not be treated as the undisclosed income for the year 1996-97 appeals dismissed

Issues Involved:
1. Validity of block assessment under section 158BC read with section 158BD.
2. Jurisdiction of the Deputy Commissioner of Income-tax, Central Circle, Calicut.
3. Legitimacy of block assessment based on cash flow statement.
4. Inclusion of capital gains for the year 1996-97 as undisclosed income.

Issue-wise Detailed Analysis:

1. Validity of Block Assessment under Section 158BC read with Section 158BD:
The appellants challenged the legality of the block assessment under section 158BC read with section 158BD of the Income-tax Act, arguing that the search was conducted on another person (their father, Kader Haji) and not on them. The court clarified that under section 158BD, if a search reveals undisclosed income belonging to another person, the Assessing Officer can hand over the relevant documents to the officer having jurisdiction over that other person. The court concluded that it is not necessary that the search be conducted in the premises of the appellant/assessee, and since the search on Kader Haji disclosed income belonging to the appellants, the procedure followed was valid.

2. Jurisdiction of the Deputy Commissioner of Income-tax, Central Circle, Calicut:
The appellants contended that the Deputy Commissioner of Income-tax, Central Circle, Calicut, had no jurisdiction over them. The court noted that the Chief Commissioner of Income-tax, Bangalore, transferred the case of Kader Haji to the Assistant Commissioner of Income-tax, Calicut, under section 127 of the Act. The Commissioner of Income-tax, Kochi, subsequently transferred the appellants' cases to the same officer. The court referred to a previous judgment (K.V. Kader Haji v. CIT [2004] 268 ITR 465) and upheld that the transfer of cases for block assessment is valid under section 127.

3. Legitimacy of Block Assessment Based on Cash Flow Statement:
The appellants argued that the block assessment based on the cash flow statement was contrary to sections 158B and 158BB. The court found no merit in this contention, noting that the assessment was based on the evidence and documents seized during the search. The court emphasized that the procedure followed was in accordance with the law, and the appellants failed to raise this issue before the Tribunal or the assessing officer.

4. Inclusion of Capital Gains for the Year 1996-97 as Undisclosed Income:
The appellants argued that the capital gains for the year 1996-97 should not be treated as undisclosed income since the relevant period had not ended, and there was still time to file a regular return. The court observed that the assessee, along with his brothers and father, sold land for Rs. 57,75,000, and each had a share. The Tribunal found that the assessee did not file any return offering this income for taxation by the time the notice under section 158BD was served in January 1998. The court upheld the Tribunal's decision, stating that the failure to file a return justified treating the amount as undisclosed income.

Conclusion:
The court dismissed the appeals, affirming the validity of the block assessment, the jurisdiction of the Deputy Commissioner, the legitimacy of the assessment based on the cash flow statement, and the inclusion of capital gains as undisclosed income.

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