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TMI Blog1986 (12) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authorities to Rs. 16,21,600. The assessment was made on 24-12-1982. He pointed out that a search was made at the residence of the assessee on 16-7-1981, during which, certain papers, valuable articles were seized from which it was found that the assessee advanced Rs. 4.5 lakhs to one Mr. Duggal in 1972. The amount was treated as unexplained income of the assessee and brought to tax under the income-tax proceeding for the assessment year 1972-73. He mentioned also that this amount was also subjected to wealth-tax for the assessment years 1972-73 to 1977-78. He pointed out that however this amount was not included in the original assessment made for the year under consideration, which was an apparent mistake from the record. Accordingly, the WTO issued notice under section 35 to which there was no response from the assessee initially. After being given sufficient opportunity, the assessee submitted a written reply contending that the mistake of non-inclusion of the above amount for the year under consideration was not a mistake apparent from the record and hence section 35 would not apply. It was also submitted that without prejudice to the above contention, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as asked to state whether the above sum was received back or was still outstanding till the assessment year 1982-83. He pointed out that from the return of income filed for 1982-83, it was noticed that a claim was made that seized cash found at the time of search also included the said amount of Rs. 4.5 lakhs. The WTO, therefore, inferred that the said amount has not been spent away, but was available with the assessee till the assessment year 1982-83, which means that the same amount was still available as on 31-3-1978 being the valuation date for the year under consideration. He, therefore, concluded that the said mistake of non-inclusion of the above sum was a mistake apparent from the record. 6. He also considered the contention of the assessee for deduction of Rs. 4,39,875. According to the WTO the concealed income was detected only on 16-7-1981 and, therefore, the liability to pay tax on the income arose only after the date and no such liability was in existence as on 31-3-1978. He, therefore, declined to allow this deduction. He also held that even otherwise such liability which might have arisen on 31-3-1972 and such liability was outstanding on the valuation date for more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) may be reversed and that of the WTO may be restored. 9. The assessee's learned counsel, however, resists the submissions made on behalf of the revenue, contending that order passed under section 132(5) or under section 132(12) was very much relevant for the present purpose, particularly when the Commissioner of Income-tax, as indicated above, has given a specific finding that the above sum could not form the wealth of the assessee for the assessment years 1978-79 onwards, as the same might have been spent by the assessee considering his status and life style. It is vehemently urged on behalf of the assessee that there was no actual cash available so as to justify the above order of the WTO. It is submitted, therefore, that the order of the Commissioner (Appeals) may be upheld. 10. We have gone through the orders of the authorities below and the other papers placed before us for our consideration. We have gone through the provisions of the above sections both of income-tax as well as wealth-tax for our perusal. We find that there is sufficient force in the arguments made on behalf of the revenue. The Commissioner of Income-tax passed order under section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of disclosure made by an assessee, such disclosure made would not preclude enquiry into the genuineness of the statement or cash credit for the purpose of regular assessments in the connected cases. The Hon'ble Supreme Court in the case of Jamnaprasad Kanhaiyalal v. CIT [1981] 130 ITR 244, indicated amongst other things that the finality under section 24(8) of the Finance (No. 2) Act, 1965, was to the order of the Central Board under section 24(6) and not to the assessment of tax made on the declaration furnished under the scheme. In a voluntary disclosure, the statement was accepted without enquiry or satisfaction that disclosed amount represented income of the assessee and, therefore, the certificate granted by section 215 of the Finance Act, 1965, would not preclude an examination of the Explanation, although such declaration may be admissible piece of evidence, but not conclusive. This is the view of the Full Bench of the Hon'ble Allahabad High Court in the case of Pioneer Trading Syndicate v. CIT [1979] 120 ITR 5, which was approved by the Hon'ble Supreme Court in the case of Jamnaprasad Kanhaiyalal. Similar is the view of the Hon'ble Gauhati High Court in the case of Radhesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat of the WTO is restored. 14. We shall come now to the appeal for the assessment year 1979-80, in which the first point of appeal by the revenue is similar to the one which has been dealt with by us in preceding paragraphs. In the assessment order made under section 16(3), the WTO narrated the background and the circumstances of the case and included the above sum of Rs. 4.5 lakhs in the net wealth of the assessee, which was taken by the assessee before the Commissioner (Appeals) who on similar reasons as for the assessment year 1978-79, deleted the addition made ; in view of the order of the Commissioner of Income-tax under section 132(12). 15. We have heard both the sides for this year also. In view of what we have discussed and decided in the appeal for the assessment year 1978-79, the appeal by the revenue on this point for this year as well also is allowed. The order of the Commissioner (Appeals) is reversed and that of the WTO is restored. 16. We shall come now to the other ground of appeal by the revenue regarding the direction given by the Commissioner (Appeals) that the immovable properties of the assessee should be determined as per rule 1BB of the Wealth-tax Rules, ..... 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