9911796707
TMI Blog2004 (9) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... umber) relating to the assessee were seized. On scrutiny, it was noticed that the assessee earned taxable income for the assessment year 1995-96, but no return was filed till the date of the search. Therefore, the Assessing Officer based on the materials seized during the search viewed the same as a detection of undisclosed income and initiated action under section 158BD of the Act, which reads as follows: "Section 158BD. Undisclosed income of any other person.-Where the Assessing Officer is satisfied that any undisclosed income belongs to any person, other than the person with respect to whom search was made under section 132 or whose books of account or other documents or any assets were requisitioned under section 132A, then, the books of account, other documents or assets seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against such other person and the provisions of this Chapter shall apply accordingly." The assessee, thereafter, filed a return in Form No. 2B admitting the income returned by them for the assessment years 1993-94 to 1995-96 and offered additional income to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income. The decision in B. Noorsingh's case [2001] 249 ITR 378 (Mad), relates to 10 the constitutional validity of section 158BB of the Act, which deals with the computation of undisclosed income for the block period. R. Jayasimha Babu J., while dealing with section 158BB(1)(c) of the Act, as to whether the assessee who had paid advance tax is entitled to file the return of income after the expiry of the due date, particularly after the search, held as follows: "The payment of advance tax by itself does not establish an intent to disclose the income. The disclosure is to be made by filing the return. Even in search cases where the time for filing the return under section 139(1) has not expired, income disclosed in the books of account is not treated as undisclosed income. All that is denied to the assessee in search cases is the opportunity to file a return after the period specified in section 139(1) and to claim that the income that he would have disclosed in a belated return is not to be regarded as undisclosed income. The reason for denying such opportunity in search cases is obvious. After having suffered a search, the assessee is not to be enabled to escape the consequences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed time. On the other hand, if the assessee, even after filing the return, felt that the total income was not correctly shown by him, he can, under section 139(5), file a revised return within the prescribed time and, apart from that, he can also file a claim for refund in accordance with section 237 read with section 239 of the Act. The claim for refund has to be made within two years and if such person satisfies the Assessing Officer that the amount of tax paid by him exceeded the amount with which he is properly chargeable under the Act for the relevant assessment year, such assessee would be entitled to refund of the excess. Thus, not making a regular assessment does not, in any way, prejudice the assessee, firstly because his return and the tax which, according to him, was admittedly payable and paid are deemed to have been accepted as true and secondly, even if the assessee feels that he is entitled to a refund, he can make a suitable claim showing that he had paid tax in excess of the amount which is properly chargeable under the Act for the relevant year. We are, therefore, of the view that, on failure of a regular assessment being made within the time prescribed or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is paid and then claim refund or complete exemption, as the case may be, as permissible under the relevant statute.....Disclosure of the self-assessed income by the assessee would only entitle the assessee to claim refund or exemption from tax as the assessee is required to show the income on the basis of which the advance tax is paid or ultimate claim is made. The moment the advance tax is paid the taxable income at that point of time is disclosed to the Revenue by the assessee. It cannot be said by the Revenue that the advance tax paid would or may not be the tax payable on the basis of the ultimate assessment made and, therefore, it cannot be taken to be a representation of the income on which the advance tax was paid. The question is whether the income, which represents the payment of advance tax, would be said to be an undisclosed income when the payment of advance tax itself necessarily implies disclosure of the income on which the advance tax is paid by the assessee to the Revenue ... Under clause (d) of sub-section (1) of section 158BB while assessing the aggregate of the total income, the income recorded in the books of account and other documents maintained in the norma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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