High Court Of Delhi
Friends Overseas (P) Ltd. vs. CIT
Section 158BC, 158BD, 260A
D.K. Jain & Madan B. Lokur, JJ.
IT Appeal No. 140 of 2002
18th November, 2003
Counsel Appeared
Simran Mehta, for the Appellant : R.D. Jolly & Ajay Jha, for the Respondent
JUDGMENT
D.K. Jain, J. :
This is an appeal by the assessee under s. 260A of the Income-tax Act, 1961 (for short ‘the Act’), challenging the order, dt. 17th Aug., 2001, passed by the Income-tax Appellate Tribunal, Delhi Bench-C, New Delhi (for short ‘the Tribunal’) in IT(SS)A No. 49/Del/1996, pertaining to the block period ending 17th Nov., 1995. According to the appellant, the impugned order involves the following substantial questions of law :
“1. Whether, on facts and circumstances of the case, the Tribunal is correct in assessing amount of Rs. 14,88,784 under s. 158BC of the IT Act, 1961 without invoking provisions of s. 158BD of IT Act, 1961 because “Annex. A-11” was not found in search at the premises of the appellant and the appellant has disowned this paper from the very beginning? Whether, on facts and circumstances of the case, assessment order is invalid, it being under s. 158BC instead of 158BD which is separate and independent charging section?
Whether, on the facts and circumstances of the case, the orders of the Tribunal confirming the assessment of Rs. 14,88,784 is perverse and without any material, it having ignored relevant evidence which is clear from application under s. 254(2) filed with the Tribunal?
Can assessment be made in the hands of appellant on the basis of Annex. A-11 which is neither found from the appellant nor owned by it, inspite of the fact that the person to whom this paper belongs appeared before AO and filed confirmation of parties in support of his owning this paper to which the AO has no rebuttal or material?”
2. The material facts, in brief, giving rise to the present appeal are as follows : The assessee, a private limited company, incorporated under the Companies Act, 1956, is engaged in the exports of handicraft goods. On 17th Nov., 1995, a search and seizure operation under s. 132 of the Act took place at the business premises of the assessee and the residences of its directors. During the course of search one of the documents, namely, Annex. A11, in a tabular form, containing details of certain cash transactions, was found and seized.
3. After making some preliminary enquiries, the AO issued a notice to the assessee under s. 158BC of the Act, directing it to file its return for the block period ending 17th Nov., 1995. In deference to the said notice, return was filed declaring nil income.
4. During the course of the assessment proceedings, the assessee was asked to explain the entries regarding the cash transactions, reflected in the upper portion of the said document. The assessee explained the said entries,
inter alia, stating that the paper showing entries of Rs. 1,75,000, Rs. 10,62,000 and others have no relation with the assessee; the assessee who had in his employment an accountant was learning computer operations and it is by chance that during practice he filled certain figures to test his ability and the print taken out by him was seized by Department; and these entries do not pertain to any business transactions which have nowhere been signed or confirmed by the assessee.
5. However, subsequently, resiling from the aforenoted explanation, the assessee attempted to explain the said entries by producing one Babu Lal Shiv Bhagwan Goenka, a resident of Bombay and closely related to Ved Prakash, one of the directors of the company. Statement of said Goenka was recorded by the AO, wherein he stated that the said entries were made by the accountant of the assessee in respect of certain transactions which he had conducted for sale of diamonds worth Rs. 15 lakhs, brought by him to Delhi. He, however, admitted that he was not assessed to income-tax. Not being satisfied with the explanation furnished by the assessee, the AO added the entire amount of Rs. 14,88,754 reflected on the said document, in respect of certain transactions, as the undisclosed income of the assessee.
6. Against the assessment so framed, the assessee preferred an appeal to the Tribunal. By the impugned order, the Tribunal has dismissed the appeal. Hence, the present appeal.
7. Assailing the impugned order, learned counsel for the assessee has strenuously urged that though the document, Annex. A-11, was found from the possession of Ved Prakash Gupta but the aforementioned addition on account of unexplained expenditure, on the basis of the said document, made in the hands of the assessee-company, cannot be sustained. The submission is that since the alleged incriminating document did not pertain to the assessee- company, the provisions of s. 158BC of the Act were not attracted insofar as the assessee was concerned and, therefore, the assessment for the block period is null and void. It is, thus, urged that the order of the Tribunal involves substantial questions of law.
8. On a plain reading of the relevant provisions contained in Chapter XIV-B of the Act, inserted by the Finance Act, 1995, we do not find any substance in the contention urged on behalf of the assessee.
9. Chapter XIV-B lays down a special procedure for assessment of cases where a search is conducted under s. 132 of the Act or books of account, other documents, etc., are requisitioned under s. 132A of the Act after 30 June, 1995. Sec. 158B is a definition section and gives definitions of the expressions “block period” and “undisclosed income”; s. 158BA makes a provision with regard to assessment of undisclosed income as a result of search initiated or requisition made after 30th June, 1995; s. 158BB relates to computation of undisclosed income of the block period and s. 158BC lays down the procedure for block assessment and s. 158BD provides for assessment of undisclosed income of any other person. In the present case, we are not concerned with the other provisions contained in the chapter. Sec. 158BA opens with a non obstante clause and, therefore, enacts a provision of overriding nature so as to prevail over any other provisions of the Act. It provides that where after 30th June, 1995, a search is initiated under s. 132 or books of account, other documents or any asset, etc., are requisitioned under s. 132A of the Act in the case of any person, the AO shall proceed to assess the undisclosed income in accordance with the provisions of Chapter XIV-B. Sec. 158BC, with which we are concerned in the instant case, lays down the procedure, which the AO is required to follow, where any search has been conducted under s. 132 or requisition of the documents, etc., mentioned therein is made under s. 132A. Therefore, the prerequisite for initiation of proceedings for assessment under the chapter is a search under s. 132 or requisition of books of account, etc., and not the quantification of the “undisclosed income”. Sec. 158BD is an enabling provision for bringing to tax any undisclosed income belonging to any person, other than the person with respect to whom search was conducted under s. 132. In the present case, while rejecting the argument that the provisions of s. 158BC of the Act were not applicable, the Tribunal has observed that it was never the case of the assessee that the document in question (Annex. A-11) was not recovered from its business premises or that it did not belong to it, or that the entries regarding expenditure aggregating to Rs. 14,88,754 were not made by its employee; vide letter dt. 7th Nov., 1996, the assessee had categorically accepted that the entries in question were made by its accountant, though for some other purpose; again on 15th Nov., 1996, the assessee reiterated the same explanation and an affidavit of the accountant was filed stating that the figures mentioned on the document were imaginary figures; this explanation was again retracted and one Babulal Goenka was produced to own the said entries, which, according to Goenka were again typed by assessee’s accountant. The Tribunal found that the assessee had knowingly and admittedly given different explanations in respect of the same document and, therefore, its yet another explanation that the subject transactions, though typed by its accountant, were made by the said Goenka lacked credence. It is pertinent to note that the assessee had not only owned up the document but had also explained the cheque transactions reflected in the lower portion of the same very document. In view of the factual scenario projected above, we unhesitatingly affirm the view taken by the Tribunal that s. 158BC had been correctly invoked in the case of the assessee-company and that s. 158BD of the Act had no application in the matter. For the foregoing reasons, we are of the view that this appeal by the assessee is wholly misconceived, as no question of law of general public importance arises or that the issue raised is such that it poses difficulty in answering it or that the issue is capable of an alternative view. As noted supra, the view of the Tribunal is based on clear provisions of law, causing no ambiguity. Thus, no substantial question of law, which is the sine qua non for the exercise of power under s. 260A of the Act, arises from the impugned order. We accordingly decline to entertain the appeal.
[Citation : 269 ITR 268]
