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TMI Blog2018 (11) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... y the statute. The sworn statement u/s 132(4) in the present case is the evidence relatable to the material or information as available with the Assessing Officer in the nature of the documents recovered from the SUT Hospital. It is also pertinent that the CIT appeals had confirmed only those additions made on account of the undisclosed income from the SUT Hospital and had deleted all the other additions. There was a departmental appeal from the order of the CIT appeals with respect to the additions deleted also, but the Revenue has not chosen to challenge the order of the Tribunal allowing the appeal of the Revenue. The appeal of the Revenue was allowed only with respect to the surcharge levied and the loss claimed on “income from house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is entitled to make such claim even during the block period as has been held in Assistant Commissioner v. Hotel Bluemoon [2010 (2) TMI 1 - SUPREME COURT OF INDIA]. The question is answered in favour of the assessee and against the Revenue but however, the computation is left to the Assessing Officer. The assessee shall produce the details before the Assessing Officer who shall consider the same and allow it to the extent permissible under the Income Tax Act. - ITA. No. 1743 of 2009 And ITA. No. 1747 of 2009 - - - Dated:- 25-10-2018 - MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The Appellant : ADVS. SRI. E. K. NANDAKUMAR, SRI. K. JOHN MATHAI AND SRI. P. BENNY THOMAS For The Respondent : SRI. JOSE JOSEPH, SC, FOR INCOM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee filed an appeal before the CIT appeals. The CIT appeals deleted all additions, except that made on account of the materials recovered and estimation made with respect to the income from SUT Hospital. The surcharge levied was also deleted. The assessee was in appeal from the addition made and the Revenue from the deletion of additions and surcharge. The Tribunal confirmed the additions in the appeal of the assessee and set aside the order of the CIT appeals with respect to surcharge in the Revenue's appeal. The deletion of additions by the first appellate authority were left untouched. Hence; the two appeals from the separate orders of the Tribunal in the appeals filed by the asessee and the Revenue. We will take up the bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts or other documents and such other materials or information as are available with the Assessing Officer and relatable to such evidence. In the present case, it is true that the Department had received some documents from the search conducted in the premises of SUT hospital. However, that alone will not result in undisclosed income being found in the hands of the assessee, unless there is some evidence recovered from the search conducted in the assessee's own premises, which is relatable to what is collected from the premises of SUT Hospital. There being no such evidence collected from the assessee's premises, as also many of the documents obtained from SUT hospital not being authenticated by the assessee, there could be no compu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 75,000/-, then the hospital had a duty to make good the shortfall; so as to ensure a minimum remuneration of ₹ 75,000/- per month. 8. The documents as recovered from the SUT Hospital tallied with the sworn statement made by the assessee under Section 132(4) of the Act. The assessee had a contention that he returned only the amounts received through Bank accounts and there was a claim raised against the hospital, which was referred for arbitration and later given up. The arrangement between the assessee and the hospital having been specifically deposed to, under Section 132(4) of the Act; if a contrary case is set up, then the onus to prove it, is on the assessee. The assessee made no attempt to prove that he had not received t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e context of there being no evidence recovered from the search in the assessee's premises relatable to the materials or information available with the Assessing Officer is answered against the assesee and in favour of the revenue on the reasoning above. ITA No.1747 of 2009 would stand rejected. 11. Two questions arise in the appeal numbered as 1743 of 2009 which are re-framed as follows: 1. Whether the assessee is liable to surcharge on tax which was made effective from 01.06.2002 alone? 2. Whether the assessee's claim for loss on house property can be set off against income computed for the block period? 12. On the question of surcharge, a larger Bench of the Hon'ble Supreme Court in 2015 (1) SCC 1 [Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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