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TMI Blog2012 (9) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... of undisclosed income which has been detected as a result of search. It is not intended to be a substitute for regular assessment. Its scope and ambit is limited in that sense to materials unearthed during search. It is in addition to the regular assessment already done or to be done. The assessment for the block period can only be done on the basis of evidence found as a result of search or requisition of books of account or documents and such other materials or information as are available with the Assessing Officer. Evidence found as a result of search is clearly relatable to Sections 132 and 132A - no substance in the contention of the revenue, that those assessments, which were not subjected to scrutiny, can be reopened and that the assessee may require to prove the source of income all over again, even if no incriminating material has been found in the search - against revenue. - INCOME TAX APPEAL No. - 575 of 2008 - - - Dated:- 3-9-2012 - Sunil Ambwani, Aditya Nath Mittal, JJ. Petitioner Counsel :- A.N.Mahajan(S.C.) 1. We have heard Shri Dhananjay Awasthi, appearing for the Income Tax Department. Shri K.K. Srivastava appears for the respondent-assessee. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the addition to made." 5. The Tribunal deleted the addition of Rs. 12, 47, 988/-, and Rs. 2, 05, 000/- in different years in the saving bank account of the assessee. 6. This Income Tax Appeal has been preferred by the revenue against the order of ITAT dated 13.6.2008 on the following substantial questions of law:- "1. Whether on the facts and circumstances of the case, the Hon'ble Tribunal was justified in law in facts in deleting the addition of rs. 12, 47, 988/- made by the AO on a/c of undisclosed income by holding that no additions in the block assessment can be made on the basis of facts declared in the regular return of income filed prior to the date of search without considering the retrospective amendment made in Section 158B and 158BB by the Finance Act, 2002. 2. Whether on the facts and circumstances of the case, Hon'ble Tribunal was justified in law in deleting the addition of Rs. 2, 05, 000/- made by the AO on a/c of undisclosed income by holding that no additions in the block assessment can be made on the basis of facts declared in the regular return of income filed prior to the date of search without considering the retrospective amendment made in Section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence or materials was discovered in the course of the search of the premises of the group to which the assessee belongs. The undisclosed income insofar as the building is concerned was solely made on the basis of the report of the Departmental Valuation Officer as obtained by the search party. The report of the Departmental Valluation Officer does not constitute materials or information relatable to the search. Such a view have been recorded in the judgments of the Madhya Pradesh High Court in CIT vs. Khushlal Chand Nirmal Kumar reported in (2003) 263 ITR 77 and Delhi High Court in CIT vs. Manoj Jain (2006) 287 ITR 285 and CIT vs. Ashok Khetrapal (2007) 294 ITR 143. While expressing our respectful agreement with the said views, it has to be held that the determination of undisclosed income of Rs. 40,04,369 in respect of the building in question being solely on the basis of the report of the Departmental Valuation Officer was rightly interfered with by the learned Tribunal. The said conclusion of the learned Tribunal, therefore, will not be open to interference." 10. Shri Srivastava has also relied upon Commissioner of Income Tax v. Ansal Buildwell Ltd (2008) 304 ITR 378 (D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of search, if some 'undisclosed' income is found on the basis of material seized, that should be treated as undisclosed income as per the scheme of special assessment under the aforesaid Chapter." 11. The view expressed by this Court in Ravi Kant Jain (2001) 250 ITR 141 is, of course, binding on us and we have also followed the view expressed by the Rajasthan High Court in Elegant Homes. In Commissioner of Income Tax v. Jupiter Builders Pvt. Ltd. (2006) 287 ITR 287, this Court reiterated the law that the undisclosed income must be unearthed as a result of the search. This is what was said on page 298 of the Report: "Assessment proceedings undertaken under Chapter XIV-B are only in respect of undisclosed income that is that income which has not been, or would not have been disclosed and which has been unearthed as a result of the search or requisition. Assessment proceedings under Chapter XIV-B are not concerned with that income which has already been disclosed and in respect of which regular assessment proceedings stand concluded or are still pending, or in respect of which time for filing of return has not expired on the date of search/requisition and which stand reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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