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TMI Blog2005 (10) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in 95 TTJ (Delhi) 25 (sic). We, therefore, reject the assessee's ground of appeal No. 6 as withdrawn. 4. We shall refer to assessee's ground of appeal Nos. 2, 3 and 4, which are based on technical points a little later. On merits, the only ground taken by the assessee in this appeal is ground of appeal No. 5, whereby the assessee has disputed the addition of following amounts as undisclosed income of the assessee for the block period: ----------------------------------- Assessment year Amount ----------------------------------- 1994-95 Rs. 35,000 1995-96 Rs. 42,000 1996-97 Rs. 1,36,840 1997-98 Rs. 60,530 1998-99 Rs. 8,411 ------------ Total Rs. 2,82,781 ------------ ----------------------------------- 5. The facts of the case relating to this dispute, briefly, are that the assessee was carrying silver jewellery in a Maruti Van and was intercepted by the police. He was found to be in possession of silver jewellery weighing 242.507 kgs. As the assessee could not properly explain the source of acquisition of silver ornaments, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expenditure and interest paid, claimed by the assessee. The amount thus disallowed was also treated as undisclosed income of the block period. 7. During the course of hearing before us, the ld. Authorised Representative of the assessee argued that insofar as the amounts disputed by the assessee's ground of appeal No. 5 are concerned, the same are required to be deleted, as they do not pertain to block assessment proceedings at all. He argued that it was settled position that only income detected during the course of search or as a result of search can be assessed as undisclosed income of the assessee in the block assessment proceedings under section 158BC. Other income of the assessee, whether disclosed by the assessee himself or found out as a result of enquiries etc. made by the Assessing Officer, are required to be assessed by way of regular assessment under section 143(3). In support of these contentions, the ld. Authorised Representative of the assessee has placed reliance on the decision of ITAT Mumbai Bench - B in the case of Morarjee Goculdas Spg. Wvg. Co. Ltd. v. Dy. CIT [2005] 95 ITD 1 (TM). 8. The ld. DR argued that this aspect had been duly considered by the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee in belated returns had already been unearthed or detected during the course of requisition under section 132A. Even the amount of cash credits surrendered by the assessee, particularly of four loans were found not as a result of search but as a result of subsequent enquiries made by the Assessing Officer after the search. We are, therefore, satisfied that the amounts mentioned in ground No. 5 are required to be excluded from the block assessment proceedings for the short reason that they do not belong to block assessment proceedings in the first instance. As already mentioned, in the case of a person searched, there has to be block assessment as well as regular assessment and the income pertaining to regular assessment alone cannot be included in the block assessment proceedings. For that purpose, it makes little difference whether or not the assessee had filed return of income as on the date of search or requisition. We, therefore, direct deletion of the assessment of undisclosed amounts as mentioned in ground No. 5 for the purpose of block assessment proceedings. 10. We now come to the assessee's grounds of appeal relating to the validity of the block assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see categorically submitted that if we find these defects pointed out by him to be curable defects, the same may be treated to have already been cured in the order under section 158BC made by the Assessing Officer and the assessee was not interested in having the fresh order under section 158BC, being made in this case. 11. The ld. DR argued that in this case, the assessee had been raising technical objections all the way. First the assessee challenged legality of requisition under section 132A before the Hon'ble Allahabad High Court without success. The objections now raised in relation to notice under section 158BC were also with the sole objectives of not paying amount of tax legitimately due from him on one pretext or the other. On receipt of notice under section 158BC, the assessee filed return of income without any objection for the correct status and for the correct period, it was the case of the assessee himself that the order under section 158BC made by the ld. Assessing Officer is correct both in respect of status as well as block period. It was admitted case of the assessee that no prejudice, whatsoever, was caused to the assessee on account of so called defects in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act." As to the scope and applicability of the provisions of section 292B reference is invited to the judgments reported in the case of CIT v. R. Giridhar [1984] 145 ITR 246 (Kar.); CIT v. K. Sarawswathi Ammal [1984] 146 ITR 486 (Mad.); Swaran Kanta v. CIT [1989] 176 ITR 291 (Punj. Har.); I. Devarajan v. Tamil Nadu Farmers Service Co-operative Federation [1981] 131 ITR 506 (Mad.); Assam Carbon Products Ltd. v. CIT [1997] 224 ITR 57 (Gauhati); Vanaja Textiles Ltd. v. CIT [2001] 249 ITR 374 (Ken), etc. 14. Even prior to enactment of the provisions of section 292B, the courts have held that mistakes/mis-description that are not of fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 505, Hon'ble Supreme Court has held that even the absence of notice may be curable. Facts of that case are that Rangalal Jajodia filed income-lax returns for the years 1942-43 and 1943-44 but before the assessments could be made, Rangalal Jajodia died. Rangalal Jajodia was survived by Shankarlal Jajodia, son by a predeceased wife, Aruna Devi, the second wife, and children by the second wife. Rangalal Jajodia had made a will on 16-4-1945, whereby Aruna Devi and one Ram Kumar Bhuwaika were executrix and executor respectively. Shankarlal Jajodia was disinherited under the will. The assessment orders were served on Shankarlal Jajodia who appealed to the Appellate Assistant Commissioner contending that he was not the legal representative. Pursuant to the directions of Appellate Asstt. Commissioner, the Revenue Officer completed the assessments on the estate of the late Rangalal Jajodia by executors, Mrs. Aruna Devi and another. The executrix, Aruna Devi, appealed against the assessments contending before the Appellate Assistant Commissioner that the assessments were barred by limitation and that the previous Appellate Assistant Commissioner's direction to make assessments on her was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the assessee in any manner, the law laid down by the Hon'ble Supreme Court in the case of Estate of Late Rangalal Jajodia is quite clear that an assessment proceeding cannot cease to be a proceeding under the Act merely by reason of want of notice.- It will be proceeding liable to be challenged and corrected. However, on the facts of the case before us there being no prejudice, the impugned order under section 158BC can be treated as having been made in lawful manner within the meaning of section 292B of the Act. The assessee also desires so. We, therefore, reject assessee's grounds of appeal Nos. 2 and 3 against the validity of the order under section 158BC. 18. The assessee's ground of appeal No. 4 is directed against the Assessing Officer not having issued any notice under section 143(2). Here again, we find the order under section 158BC as having been validated by the provisions of section 292B of the Act. To begin with, the ld. Assessing Officer himself gives the caption, '158BC read with section 143(3) of the Income-tax Act'. On perusal of the assessment order, it is seen that the assessee appeared before the ld. Assessing Officer through his authorized representative fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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