2002 (4) TMI 16 - HC - Income Tax

1. Whether Tribunal is correct in holding that the amended provisions of section 40A(3) is not applicable to the facts of the case and that the entire amount added has to be sustained and not only 20 per cent. of the amount paid? - 2. Whether on the facts and in the circumstances of the case the Appellate Tribunal was right in holding that the amendment to the provisions of section 40A(3) is not a procedural one but a substantive one? - Tribunal was right in holding that the amended provision was only prospective. We agree with the order of the Tribunal in that behalf.

Summary

Issues Involved:
1. Applicability of amended provisions of section 40A(3) of the Income-tax Act.
2. Nature of the amendment to section 40A(3) - whether procedural or substantive.

Issue-wise Detailed Analysis:

1. Applicability of Amended Provisions of Section 40A(3):
The primary issue was whether the amended provisions of section 40A(3) were applicable to the facts of the case. The assessee argued that the expenses disclosed from the accounts, which were genuine, should not be considered as "undisclosed income." The court rejected this argument, stating that even genuine expenditures unearthed during the search could be considered as income for tax purposes. The court emphasized that the amendment brought by the Finance Act, 2002, with retrospective effect from July 1, 1995, did not change the nature of the expenditures being assessed under other provisions of the Act. Hence, the court held that the expenditures found during the search must be assessed in light of the other provisions of the Act as per section 158BH and cannot be ignored merely because they were genuine.

2. Nature of the Amendment to Section 40A(3):
The second issue was whether the amendment to section 40A(3) was procedural or substantive. The assessee contended that the amendment was procedural and should apply retrospectively to all payments made during the block period. The court disagreed, stating that the amendment was not procedural but substantive. The court noted that the amendment introduced by the Finance Act, 1995, effective from April 1, 1996, changed the disallowance from complete disallowance of expenses to only 20 percent disallowance of such expenditures. This change provided a new right to the assessee to claim 80 percent of the expenses as allowable, which was not previously available. Therefore, the court concluded that the amendment was substantive and could not be applied retrospectively. The court upheld the Tribunal's decision that the amended provision was prospective.

Conclusion:
The court dismissed the appeal, affirming that the amended provisions of section 40A(3) were not applicable to the facts of the case as argued by the assessee. The court also held that the amendment to section 40A(3) was substantive and not procedural, and thus, could not be applied retrospectively. The appeal was dismissed with no costs.