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TMI Blog2011 (12) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... closed investment; - confirming the addition of ₹ 13 lakhs being unexplained investment; - confirming the addition of ₹ 2.80 lakhs being unexplained investment in the construction of boundary wall and borewell; (3) confirming the addition of ₹ 13.4 lakhs being short term capital gains on sale of Santej land; - confirming the addition of ₹ 58.55 lakhs being undisclosed capital gain on account of payments to M/s. Maruti Construction. 3. The assessee's nature of business is manufacturing and trading of utensils and related products. There was a search and seizure operation in the office premises of the assessee which started on 8.12.1998 and concluded in the month of February, 1999 and, according to the Revenue, several incriminating documents were unearthed. In compliance to a notice u/s 158BC of the Act dated 31.5.2000, the assessee furnished a return of undisclosed income for the block period on 13.11.2000, admitting 'Nil' income. After due consideration of various replies and explanation furnished during the course assessment proceedings and for the detailed reasons recorded in his impugned assessment order under dispute, the AO made the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 whereby it was called upon to file return of income for the block period within 45 days of receipt of the notice. This period of 45 days is the maximum period allowable for filing of return as per clause a(ii) of s.158BC of the Act. There is no provision in I.T. Act which provides for filing of return in response to notice u/s 158BC after a period of 45 days. There is also no provision for filing of a revised return. Thus, the appellant had to file a return by 17.7.2000, if it wanted to file a return which could be considered to be a valid return within the meaning of s.158BC of the Act. However, no return was filed by due date. Thereafter, the assessing officer issued a show-cause notice dated 11.10.2000 asking the appellant as to why prosecution u/s 276CCC of I.T. Act, 1961 should not be initiate for non-filing of return. Thereafter, a notice u/s 142(1) of the Act dated 7.11.2000 was served on 10.11.2000 by which the appellant was intimated that no return was filed by it in response to notice u/s 158BC of the Act and, hence, the appellant was asked to furnish various details and explanations by that notice so that assessment could be completed. The appellant finally filed its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Hence, there is no illegality in the order passed by the AO and procedure adopted by him is correct and as per law. The additional ground taken by the appellant is, therefore, dismissed and AO's order is upheld and confirmed." 5. Agitated with the findings of the ld. CIT (A), the assessee has come up with the present appeal. 5.1. During the course of hearing, it was submitted by the ld. A.R. that the ld. CIT (A) had grossly erred in treating the return of the block period filed by the assessee as 'non-est' in total disregard of the fact that the return was delayed because of the lapses on the part of the AO who failed to furnish the Xerox copies of the seized materials and also failed to distinguish the findings of the Hon'ble Tribunal in the case of Rakesh S Mardia [74 TTJ 836] although in the said case there were identical set of facts and had thereby committed judicial impropriety and erred in law in refusing to follow the order of the Tribunal as held by the Hon'ble Madhya Pradesh High Court in the case of Agrawal Warehousing & Leasing v. CIT [257 ITR 235] which had followed the ruling of the Hon'ble Apex Court reported in (1992) AIR 1999 2 SC 711 with regard to judicial d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it was submitted that the facts of the present case totally different from the cases of (i) Smt. Bandana Gogoi and (ii) Janak K Kansara mentioned above. A comparison of the main important dates relevant for the assessment is as under: Sl. No. Event In the case of Bandana Gogoi In the case of Janak Kansara In the case of present assessee 1 Date of search F.Y 1997-98 08.12.1998 08.12.1998 2 Date of issue of notice u/s 158BC 20.08.1998 31.05.2000 31.05.2000 3 Date of issue of notice u/s 142(1) Not available 13.11.2000 07.11. 2000 24.11.2000 24.11.2000 4 Date of filing of return 31.03.1999 10.11.2000 13.11.2000 5 Date of hearing Not available Not available 12.02.2001 15.02.2001 20.02.2001 6 Date of completion of assessment Not available 30.01.2000 28.02.2001 Considering the above typical facts, it was urged that no decision of any court is directly applicable to the present case and, therefore, pleaded that the case may be decided on merits. In conclusion, the ld. D R relied on the finding of the Ld. CIT (A) that: "(at the cost of repetition) "In respect of grounds of appeal taken along with the original appeal memo, the learned authorized r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn. However, it is seen that no return of income was furnished by the assessee in consequence to the notice u/s 158BC of the Act within the due date. As could be seen from the records that due to non-compliance of the Notice u/s 158BC of the Act within the due date, the Ld. AO had issued a show-cause notice dt.11.10.2000 asking the assessee as to why prosecution u/s 276CCC of the Act should not be initiated for nonfiling of the return. Thereafter, a notice u/s 142(1) of the Act was served on the assessee intimating that no return was furnished by it within the due date and, thus, it was required to furnish various details and explanation so that assessment could be concluded. Thus, the ld. CIT (A) was within his realm to observe that the return of income furnished by the. assessee after the lapse of stipulated time frame prescribed u/s 158BC of the Act has to be treated as 'non est'. We have also duly perused the case laws on which the assessee had placed its reliance, however, we are of the considered view that those cases are clearly distinguishable and have no relevance to the issue on hand. The return furnished by the assessee could not be acted upon since it was furn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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