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TMI Blog2009 (9) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... was no material to show that any other income which may have been concealed and any undisclosed assets have been found in the search – Assessment can not be made on the basis of best judgment assessment. - 88 of 2000 - - - Dated:- 2-9-2009 - R.K. Agrawal, and Hon'ble Shashi Kant Gupta, JJ. R.K. Upadhyaya for the cpmmissioner. S.K. Grag for the assessee. JUDGMENT The Income Tax Appellate Tribunal, Allahabad has referred the following two questions under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act) for opinin of this Court: "1.Whether on the facts and circumstances of the case, the Ld. Tribunal was correct in law in holding that in a block assessment there is no scope of an assessment bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would be making part payment at the time of the examination and balance paid at the time of collection of the reports. There was yet a third category of persons who, though made certain part payment at the time of examination, but never turned up to collect the reports and in such cases, the question of balance payment never arose. Proceeding to refer to the quantification of the three types of receipts made by the assessee, Group I where both advance and balance payments were received and receipts issued, aggregated an amount of Rs. 63,490/-. In the second list there is a dispute of a sum of Rs. 6,670/- out of the amount of Rs. 23,160/- which amount according to the assessee was also received but did not reach them, as had been embezzled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the uncollected reports which were duly shown to the predecessor A.O. and perused by the then Commissioner, were available with them and that the detailed classification lists made available to the Assessing Officer in any manner. Secondly, and more importantly we ourselves devoted some time in the random check to the reports in respect of the patients who did not, as per assessee's bersion, turned up to collect them by tendering the remaining payent and found that they wer actually lying with them. In our opinion, this would lead to the irresistible conclusion that the patients in question, whatever reasons there might have been did not turn up the assessee's place to collect the reports. If that were so, there was no question at all about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the material before him, in which some amount of guess work was inevitable. In contradistinction to these facts, in the present case the assessee was searched (emphasis provided). During this search firstly, no other diary or other record comparable to the note book marked as "B-1/23" were found by the search par;ty for the remaining period, which normally would have been, were it being maintained and kept. We are conscious that such a record have been destroyed also from time to time. But in such a situation also, if the assessees had actually made a fortune of similar receipts in respect of the remaining part of the year, they must be reflected by certain assets, movable or immovable ought to have ben found during the course of search. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can be made only as per the provisions of Section 158BB of the Act and if any undisclosed income, expenditure, investments and assets have not been detected the best judgment assessment cannot be made and the Department is free to make reassessment under Section 147/148 of the Act. 8. Under Section 158 BB of the Act the procedure for computing the undisclosed income of the block period has been given. It provides that the undisclosed income of the block period shall be the aggregate of the total income of the previous years falling within the block period computed, in accordance with the provisions of this Act, on the basis of evidence found as the result of search or requisition of books of account or other documents and such other m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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