P.M.Kelukutty, Calicut V. DCIT, Calicut

ITSSA 28/COCH/2006

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8261 (ITAT-COCHIN)
• Duration Of Justice: 5 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 06-04-2011
• Assessment Year: misc
• Appeal Filed On: 10-04-2006
• Court: TRIBUNAL
• Department Lawyers: S C SONKAR
• Assessee Lawyers: S RAGHUNANDAN
• Keywords: Gift; Block assessment
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T.(SS)A. NO. 28/COCH/2006 BLOCK PERIOD:01/4/1986 TO 05/3/1997 SHRI P.M.KELUKUTTY, VELLAYIKODE, PANTHEERANKAVU, CALICUT. [PA: AJUPK5305P] VS. THE DEPUTY COMMISSIONER OF INCOME TAX (INV.), CIRCLE-1, CALICUT (ASSESSEE -APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI S.RAGHUNANDAN, CA REVENUE BY SHRI S.C.SONKAR, CIT-DR O R D E R PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE ARISING OUT OF T HE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, CALICUT (CIT(A) FOR SHORT ) DATED 27.1.2006, AND THE BLOCK PERIOD UNDER REFERENCE IS FROM 1.4.1986 TO 5.3.1997 , THE DATE OF SEARCH. 2. THE ASSESSEE, AN INDIVIDUAL BASED AT CALICUT, IS IN THE CIVIL CONSTRUCTION BUSINESS, UNDERTAKING THE SAME ON CONTRACT BASIS, BESIDES BEI NG ALSO A PARTNER IN THE FIRM M/S. P.M.KELUKUTTY AND BROS., ALSO IN THE SAME BUSINESS. A SEARCH U/S. 132 OF THE INCOME-TAX ACT,1961 ('THE ACT' HEREINAFTER) WAS CONDUCTED AT T HE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE, AS WELL AS THAT OF HIS BROTHERS, AND CASH AND OTHER DOCUMENTS, INCLUDING BOOKS OF ACCOUNTS, SEIZED. THE ADDITIONS TO THE RE TURNED UNDISCLOSED INCOME BEING AGITATED PER THE PRESENT APPEAL ARE IN PURSUANCE TO THE ASSESSMENT DATED 18.3.1999 FOR THE BLOCK PERIOD FRAMED U/S. 158BC OF THE ACT. WE SHAL L TAKE UP EACH OF THE GROUNDS IN SERIATIM. 3. THE FIRST GROUND IS GENERAL IN NATURE, WARRANTIN G NO ADJUDICATION, AND IS THEREFORE DISMISSED AS SUCH. THE SECOND GROUND IS IN RESPECT OF THE NON-ALLOWANCE OF CREDIT/S, IT(SS)A.NO.28 /COCH/2006 2 CLAIMED IN THE SUM OF ` 1,95,000/- BY THE APPELLANT PER THE CASH FLOW STATE MENT FURNISHED, I.E., BY WAY OF CASH OSTENSIBLY PROVIDED BY HIS WIF E FROM YEAR TO YEAR OUT HER AGRICULTURAL INCOME. THE NON-ALLOWANCE OF THE CLAIM BY THE ASSE SSING OFFICER (AO) WAS AS APART FROM STATING OF HER OWNING AGRICULTURAL LAND, NO EV IDENCE AS TO AGRICULTURAL OPERATIONS OR EARNING AGRICULTURAL INCOME STOOD ADDUCED BY THE AS SESSEE. BESIDES, OF THE 1.4 ACRES STATED TO BE OWNED BY HER, 12 CENTS OF LAND WAS PUR CHASED ONLY IN 1994 AT A COST OF ` 25,000/-. FURTHER, SMT. YESODA, WIFE OF THE ASSESS EE, WAS ALSO A PARTNER IN THE FIRM M/S. KAILAS CONSTRUCTIONS, AND HAD ADVANCED ANOTHER ` 65,000/- TO THE ASSESSEE. UNDER THE CIRCUMSTANCES, THEREFORE, THE CLAIM OF ` 1,95,000/- COULD NOT BE ACCEPTED. THE SUM STOOD CONFIRMED IN APPEAL FOR THE SAME REASONS. AGGRIEVE D, THE ASSESSEE IS IN APPEAL. 4. BEFORE US, IT IS SUBMITTED ON THE ASSESSEES BEH ALF, THAT THE SUM OF ` 1.95 LAKHS IS AN AGGREGATE AMOUNT SPREAD OVER 11 YEARS, I.E., FRO M THE PREVIOUS YEAR RELEVANT TO A.Y.1987-88 TO A.Y. 1997-98; THE AMOUNT FOR EACH YE AR VARYING FROM ` 10,000 TO ` 25,000. THE SAME IS REASONABLE AND WORKS TO A CRED IT OF ONLY ` 50 TO ` 125 PER CENT. THE LD. DR, ON THE OTHER HAND, RELIED ON THE ORDERS OF THE AUTHORITIES BELOW, STATING THAT EVEN NO PROOF AS TO THE LANDHOLDING BY THE WIFE STANDS S UBMITTED. 5. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE BASIS FOR THE DENIAL OF THE IMPUGNED CREDIT IN THE INSTANT CASE B Y THE REVENUE IS THE FAILURE IN PROVING THE CAPACITY OF THE WIFE TO THE STATED EXTENT. THE LANDHOLDING MAY NOT BE DISPUTED; THERE BEING NO SPECIFIC CHARGE BY THE REVENUE IN THE MATT ER, BUT THAT BY ITSELF WILL NOT AUTOMATICALLY GENERATE AGRICULTURAL INCOME, TOWARD WHICH NO EVIDENCE WHATSOEVER HAS BEEN SUBMITTED, OR, EVEN SO, A SURPLUS TO THE STATE D EXTENT, SO THAT THE ASSESSEES CASE IS ESSENTIALLY SANS ANY EVIDENCE. IT IS TO BE BORNE IN MIND THAT THE S HE IS ALSO AN ASSESSEE AND THAT AGRICULTURAL INCOME IS INCLUDIBLE IN THE RETUR NED INCOME FOR RATE PURPOSES, BESIDES BEING ALSO SUBJECT TO TAX UNDER THE STATE LAW. FURT HER, SMT. YESODA HAS MADE INVESTMENTS DURING THE BLOCK PERIOD, VIZ. IN LAND (IN 1994) AS ALSO IN THE PARTNERSHIP FIRM, M/S. KALLIYATH CONSTRUCTIONS, AS WELL AS ADVANCED ( ` 65,000/-) TO THE ASSESSEE, AND WHICH WOULD ONLY CONSUME HER RESOURCES TO THAT EXTENT. AN OTHER RELEVANT ASPECT IS THAT THE ASSESSEE HAD FILED HIS RETURNS UP TO A.Y. 1995-96 P RIOR TO THE DATE OF SEARCH, IN NONE OF IT(SS)A.NO.28 /COCH/2006 3 WHICH ANY CREDIT FROM HIS WIFE HAS BEEN REFLECTED, EVEN AS THE AMOUNTS, AS PER HIS CASH FLOW STATEMENT, STATED TO BE RECEIVED FROM HER UP T O THAT YEAR AGGREGATE TO ` 1.45 LAKHS. UNDER THE CIRCUMSTANCES, THEREFORE, THE SURPLUS ASC RIBED TO THE WIFE CANNOT BE SAID TO HAVE BEEN ESTABLISHED. WE, THEREFORE, CONFIRM DENIA L OF THE CREDIT TO THE ASSESSEE IN ITS RESPECT. 6. THE THIRD GROUND OF THE ASSESSEES APPEAL CONTES TS THE LIMITING OF THE CREDIT QUA CASH RECEIVED, BY WAY OF KURIKALYANAM, CLAIMED AT ` 2.52 LAKHS, TO ` 1 LAKH. THE SAID AMOUNT IS STATED TO HAVE BEEN RECEIVED DURING THE P ERIOD RELEVANT TO A.Y. 1989-90 IN THE CASH FLOW STATEMENT, I.E., AT THE TIME OF THE MARRI AGE OF HIS DAUGHTER SASIKALA (ON 10.2.1989), BESIDES MARRIAGE GIFTS FOR ANOTHER ` 32,000/-, WHICH HOWEVER WERE NOT DOUBTED OR ADDED BY THE AO. THE REASON FOR ITS NON -ACCEPTANCE BY THE AO WAS, AGAIN, THE ABSENCE OF ANY DEFINITE EVIDENCE LED BY THE ASS ESSEE. THE LD. CIT(A), HOWEVER, FOUND THAT THE ASSESSEE HAD CLAIMED TO HAVE HIMSELF DONAT ED VARIOUS SUMS TO KURIKALYANAM DATING AS FAR BACK AS TO THE FIRST YEAR OF THE BLOC K PERIOD, VIZ. ` 12,990/- IN 1986-87, ` 6225/- IN 1987-88, ` 8865 IN 1988-89, ` 34,420/- IN 1989-90 AND ` 27,036/- IN 1990-91. FURTHER, THE AO HAS HIMSELF ACCEPTED THE CLAIM FOR RECEIPT OF ` 2.44 LAKHS FOR THE YEAR 1993-94, INCLUDING BY WAY OF MARRIAGE GIFTS. AS SUC H, THE RECEIPT FROM KURIKALYANAM DURING THE RELEVANT YEAR (I.E., PREVIOUS YEAR RELEV ANT TO A.Y. 1989-90) COULD NOT BE ENTIRELY DENIED. IN THE ABSENCE OF PROPER RECORDS, AS ALSO CONSIDERING THE FACT THAT THE ASSESSEE WAS NOT AS PROSPEROUS DURING THE EARLIER YEARS AS HE WAS IN THE LATER YEARS, THE LD. CIT(A) ADMITTED AND ACCEPTED THE ASSESSEES CLA IM OF RECEIPT FROM THIS SOURCE AT ` 1 LAKH. AGGRIEVED, THE ASSESSEE IS IN APPEAL. 7. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE SEARCH YIELDED A SEIZED DOCUMENT MARKED AS A-II/46. THE SAME IS A REGISTER CONTAINING DETAILS OF KURIKALYANAM PAYMENTS MADE DURING THE YEARS 1983 TO 1993. THE SAME REVEALED NON- CONDUCT OF ANY KURIKALYANAM BY THE ASSESSEE BETWEEN 1983 TO 1993. THE KURIKALYANAM RECEIPTS DURING THE YEAR 1993-94 (RELEVANT TO A.Y. 1994-95) IS IN RESPECT OF NEW KURIKALYANAM, THE DETAILS OF WHICH ARE AVAILABLE IN A SEPARATE REGISTER, REFERENCE TO PGS. 15 AND 124 (TO 132) WHEREOF HAS BEEN MADE BY THE AO . THE SAID REGISTER HAS BEEN IT(SS)A.NO.28 /COCH/2006 4 METICULOUSLY MAINTAINED, BEARING ALL THE RELEVANT D ETAILS, INCLUDING THE ABSTRACT ACCOUNT APPEARING AT PGS. 90 TO 91 THEREOF, AND THE CLAIM Q UA WHICH (FOR AY 1994-95) STANDS ACCEPTED BY THE AO. HOWEVER, THE FACTUAL FINDINGS W ITH REFERENCE TO THE IMPUGNED CREDIT, WHICH RELATES TO AY 1989-90, MADE WITH REFERENCE TO THE SEIZED MATERIAL AND THE FURTHER EXPLANATION/S FURNISHED BY THE ASSESSEE, HAVE NOT B EEN REBUTTED OR EVEN CONTESTED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY OR EV EN BEFORE US. AS SUCH, UNDER THE CIRCUMSTANCES, WE ARE IN AGREEMENT WITH THE DENIAL OF CREDIT BY THE AO FOR THE IMPUGNED CLAIM; AND RATHER INCLINED TO ACCEPT THE LD. DRS A RGUMENT, AS RAISED BEFORE US, I.E., THAT EVEN ALLOWANCE OF ` 1 LAKH BY THE LD. CIT(A) HAS BEEN BY TAKING A LENIE NT VIEW, AND BY GIVING A BENEFIT OF DOUBT TO THE ASSESSEE IN THE MA TTER. WE, THEREFORE, CONFIRM THE IMPUGNED ORDER. 8. GROUND NOS. 4 TO 7 OF THE APPEAL WERE NOT PRESSE D AT THE TIME OF HEARING, AND ARE THEREFORE DISMISSED AS NOT PRESSED. 9. THE EIGHTH AND FINAL GROUND RELATES TO THE ASSES SMENT OF THE INCOME RETURNED FOR A.Y. 1996-97 (AT ` 1,50,925/-) AND A.Y. 1997-98 (AT ` 2,72,837/-) BY THE ASSESSEE AS UNDISCLOSED INCOME SUBJECT TO BLOCK ASSESSMENT (EVE N THOUGH THE RELEVANT GROUND # 8 MIS-STATES BOTH THE ASSESSMENT YEARS AS THE FOLLOWI NG ASSESSMENT YEAR). AS REGARDS A.Y. 1996-97, THE ASSESSEES CASE IS THAT THOUGH NO RETU RN HAS BEEN FILED UP TO THE DUE DATE OF THE FILING OF THE RETURN U/S. 139(1) (30.8.1996), T HE SAME WAS FILED WITHIN THE TIME ALLOWED U/S. 139(4), I.E., 31.3.1998. SECTION 158BB(1) (C) NOWHERE MENTIONS THE DUE DATE FOR FILING A RETURN AS WITH REFERENCE TO S. 139(1) ONLY . AS SUCH, WHERE THE RETURN HAS BEEN FILED WITHIN THE TIME ALLOWED U/S. 139(4), THE SAME WOULD QUALIFY AS HAVING BEEN FILED WITHIN THE DUE DATE FOR THE FILING OF THE RETURN AN D, ACCORDINGLY, THE SAME CANNOT BE CONSIDERED AS UNDISCLOSED INCOME. RELIANCE WAS PLA CED BY HIM ON THE DECISION IN THE CASE OF AMARNATH AGARWAL VS. CIT (DY.) , 67 TTJ (DEL.) 551. 10.1 WE SHALL CONSIDER THIS ASPECT IN SOME DETAIL A S WE FIND THE REASON FOR THE NON- ACCEPTANCE OF THE ASSESSEES CLAIM, SUPPORTED BY TH E DECISION BY THE TRIBUNAL IN THE AFORESAID CASE, BY THE LD. CIT(A) AS NOT VALID. TH E LD. CIT(A) HAS DISTINGUISHED THE SAID IT(SS)A.NO.28 /COCH/2006 5 CASE BY STATING THAT THE RETURN IN THAT CASE STOOD FILED, THOUGH BELATEDLY, BEFORE THE DATE OF SEARCH, WHILE IN THE INSTANT CASE IT WAS FURNISHED AFTER 5.3.1997, THE DATE OF SEARCH, SO THAT THE SAID DECISION WAS NOT APPLICABLE. THIS IS FACT UALLY INCORRECT, AS THE RETURNS FOR A.Y. 1995-96 AND AY 1996-97 IN THAT CASE WERE FILED ON 3 1.3.1997 , WHILE THE SEARCH WAS CONDUCTED ON 10.10.1996 , SO THAT THE SAID DECISION COVERS THE INSTANT CASE ON FACTS. SO, HOWEVER, IT NEEDS TO BE EMPHASISED AND CLARIFIED TH AT THE SAID DECISION, AS WELL AS THAT BY THE TRIBUNAL IN THE CASE OF MAHESH KUMAR S. AGARWAL VS. CIT (ASST.) (IN IT(SS)A NO. 524/NAG/1997 DATED 31.8.1998), WHICH IT FOLLOWS, ST AND RENDERED PRIOR TO THE AMENDMENT IN LAW BY FINANCE ACT, 2002, W.R.E.F. 1.7.1995. PRI OR TO THE AMENDMENT, CLAUSE (C) OF SUB- SECTION (1) OF S. 158BB READ AS UNDER:- (C) WHERE THE DUE DATE FOR FILING THE RETURN OF INCOME HAS EXPIRED BUT NO RETURN OF INCOME HAS BEEN FILED, AS NIL; THAT BEING THE POSITION OF LAW, THERE AROSE SITUATI ONS WHERE THE ASSESSEE THOUGH HAD MAINTAINED COMPLETE BOOKS OF ACCOUNTS, YET NOT FILE D THE RETURN OF INCOME, AS EITHER THE SAME RESULTED IN A LOSS OR DID NOT EXCEED THE MAXIM UM AMOUNT NOT CHARGEABLE TO TAX (FOR ANY PREVIOUS YEAR FALLING WITHIN THE BLOCK PERIOD). THERE WAS AS SUCH NO DISCRIMINATION AVAILABLE IN LAW EITHER WITH REFERENCE TO THE INCOM E FOR THE RELEVANT YEARS OR FOR THE BOOKS OF ACCOUNTS OR RECORDS, ETC. MAINTAINED BY THE ASSE SSEE. IN OTHER WORDS, THE ASSESSEE STOOD TO BE PENALIZED FOR NO OR LITTLE FAULT OF HIS. IT W AS UNDER SUCH CIRCUMSTANCES THAT THE TRIBUNAL OPINED THAT THE ASSESSEE COULD NOT BE PUT TO HARDSHIP FOR NOT HAVING FILED ITS RETURN OF INCOME BY THE DUE DATE, AND WHICH PROVISI ON CANNOT BE CONSTRUED AS STRICTLY WITH REFERENCE TO S. 139(1); THE LAW ITSELF POSTULA TING OR ENVISAGING THE FILING OF RETURN WITHIN THE EXTENDED TIME PERIOD. SECTION 158BB OF THE ACT IS PROCEDURAL IN NATURE, PROVIDING FOR THE MACHINERY FOR COMPUTATION OF UNDI SCLOSED INCOME, AND THEREFORE CANNOT TRANSCEND S. 158B, WHICH DEFINES `UNDISCLOSED INCOM E AS ANY INCOME WHICH HAS NOT BEEN OR WOULD NOT HAVE BEEN DISCLOSED (BUT FOR THE SEARC H OR REQUISITION) FOR THE PURPOSE OF THE ACT. AS SUCH, ANY CONCLUSION COULD ONLY BE DRAWN O N THE BASIS OF THE CIRCUMSTANCES OF THE CASE. WHERE THE SAME INDICATE - TO A PRUDENT A ND REASONABLE MAN - THAT THE ASSESSEE WOULD NOT HAVE DISCLOSED THE INCOME, THEN ONLY THE SAME COULD BE CONSIDERED AS UNDISCLOSED INCOME, ELSE NOT. E.G., IN THE CASE OF MAHESH KUMAR S. AGARWAL (SUPRA), THE IT(SS)A.NO.28 /COCH/2006 6 ASSESSEE HAD PAID ADVANCE TAX AND MAINTAINED BOOKS OF ACCOUNTS. AS SUCH, NON CREDIT FOR INCOME RETURNED, WHICH WAS IN TUNE WITH THAT RETURN ED IN THE PAST, ONLY FOR THE REASON THAT THE TIME FOR FILING THE RETURN U/S. 139(1) WAS OVER , WAS CONSIDERED BY THE TRIBUNAL AS NOT JUSTIFIED. THE FOREGOING EXPLAINS THE RATIONALE AN D THE CONTEXT OF THE DECISIONS RENDERED BY THE TRIBUNAL IN THE MATTER PRIOR TO THE AMENDMEN T. OF COURSE, IT WOULD BE A DIFFERENT MATTER ALTOGETHER WHERE THE INCOME IS RETURNED, THO UGH BELATEDLY, BUT PRIOR TO THE DATE OF SEARCH. TOWARD THIS, IT MAY BE CLARIFIED THAT IN SU CH A CASE IT IS NOT THE FILING OF THE RETURN BEFORE THE EXPIRY OF THE TIME LIMIT SPECIFIED U/S. 139(4) THAT IS DECISIVE OR OF MUCH RELEVANCE, BUT OF THE DISCLOSURE OF INCOME PER THE RETURN FILED PRIOR TO THE SEARCH, WHICH THEREBY TAKES THE SAID INCOME OUTSIDE THE PURVIEW O F `UNDISCLOSED INCOME AS DEFINED U/S. 158B. IT NEEDS TO BE APPRECIATED THAT THE `DUE DATE COULD ONLY BE U/S. 139(1), AND THAT THE PERIOD ALLOWED FOR FILING A RETURN BELATEDLY UNDER THE ACT (S. 139(4)) COULD NOT POSSIBLY BE SAID TO BE A `DUE DATE. THE DIFFERENCE BETWEEN TH E TWO RETURNS IS WELL SETTLED; THE LATTER BEING NOT CONSIDERED AT PAR WITH THE FORMER, AND IN FLICTED WITH CERTAIN DISABILITIES. 10.2 THE MATTER, THUS, WAS INSISTED BY THE TRIBUNAL (PER ITS VARIOUS DECISIONS) TO BE VIEWED IN A HOLISTIC MANNER, KEEPING THE SCOPE OF T HE INCOME TO WHICH CHAPTER XIV-B APPLIED, AND CORRESPONDINGLY, THE IMPORT AND PURPOR T OF THE PROVISIONS THEREOF WHICH SOUGHT TO BRING IT TO TAX. AS AFORE-STATED, THE SAI D `DEFICIENCY HAS SINCE BEEN REMOVED, WITH THE ERSTWHILE CLAUSE (C) (SUPRA) BEING SUBSTIT UTED BY CLAUSES (C) AND (CA) BY FINANCE ACT, 2002 W.R.E.F. 1.7.1995, I.E., THE DATE FROM WH ICH THE CHAPTER XIV-B BECAME APPLICABLE. THE PROVISION, AS IT NOW STANDS, IS AP TLY CLEAR, SO THAT WHERE THE DUE DATE FOR FILING OF THE RETURN OF INCOME HAS EXPIRED (AS ON T HE DATE OF SEARCH) AND NO RETURN HAS BEEN FILED, NO CREDIT FOR THE INCOME RETURNED SUBSE QUENTLY COULD BE TAKEN EXCEPT IN THE CASE FALLING UNDER CLAUSE (C) (AMENDED), I.E., WHER E THE RECORDS SHOW THAT THE INCOME FOR THE YEAR WAS EITHER AT A LOSS OR BELOW THE MAXIMUM AMOUNT NOT CHARGEABLE TO TAX FOR THAT YEAR. FURTHER, SUCH RECORD HAS TO BE, AND ONLY NECE SSARILY SO, ONE WHICH IS MAINTAINED ON OR BEFORE THE DATE OF SEARCH. THE ASSESSEES ARGUME NT IS THAT THE DUE DATE (FOR FILING THE RETURN OF INCOME) WOULD NOT BE CONSIDERED AS U/S. 1 39(1) ONLY, AS THE ACT (CLAUSE (C )) MAKES NO MENTION OF ANY SUB-SECTION OF S. 139, AS I N THE CASE OF CLAUSE (D) TO S. 158BB(1). THE SAME, IN FACT, ITSELF GOES TO DEFEAT ITS CASE. THIS IS FOR THE REASON THAT THE IT(SS)A.NO.28 /COCH/2006 7 VERY FACT THAT CLAUSE (D), WHICH CONCERNS THE CASE WHERE THE `DUE DATE FOR THE FILING OF RETURN HAS NOT EXPIRED (AS ON THE DATE OF SEARCH), IS WITH REFERENCE TO S. 139(1), ITSELF IMPLIES THAT THE ALTERNATE CONDITION, I.E., WHEN TH E TIME LIMIT HAS EXPIRED, IS ALSO WITH REFERENCE TO S. 139(1). SUCH A CONSTRUCTION ONLY W OULD LEND HARMONY TO, AND SUPPLY AND SUPPORT THE COMPLEMENTARINESS OF THE TWO PROVISIONS REPRESENTING ALTERNATE CONDITIONS, I.E., AS WHERE THE TIME LIMIT (FOR FILING THE RETUR N) HAS EXPIRED (AS ON THE DATE OF SEARCH), AND WHERE IT HAS NOT. IN FACT, THE LAW IS NO LONGER RES INTEGRA , AND HAS BEEN THE SUBJECT MATTER OF DECISION BY THE HIGHER COURTS OF LAW, AS WELL BY THE TRIBUNAL, AS IN THE CASE OF B. NOORSINGH V. UNION OF INDIA & OTHRS , 249 ITR 378 (MAD.); M.R. SINGHAL V. CIT (ASSTT.) , 290 ITR 162 (P&H); P.K. KALIANNAN & OTHRS. V. CIT (ASSTT.) , 68 ITD 401 (CHENNAI). AS SUCH, WE, THOUGH NOT IN AGREEMENT WITH THE REASONS AS ADVANCED BY THE LD. CIT(A), CONFIRM HIS VIEW, AND UPHOLD THE REVENUES ASSESSME NT OF THE RETURNED INCOME FOR A.Y. 1996-97 AS UNDISCLOSED INCOME. 11. WE SHALL NEXT CONSIDER THE LIKEWISE TREATMENT O F THE RETURNED INCOME FOR A.Y. 1997-98, THE DUE DATE FOR FILING THE RETURN OF INCO ME U/S. 139(1) FOR WHICH FALLS ON 30.8.1997, I.E., AFTER SEARCH. EVEN SO, NO CREDIT STOOD ALLOWED BY THE REVENUE FOR THE REASON THAT THE ASSESSEE HAD NOT MAINTAINED ANY BOO KS OF ACCOUNTS. AGAIN, THE LAW IN THE MATTER IS APTLY CLEAR (S. 158BB(1)(D)), SO THAT THE ASSESSEE WOULD BE ENTITLED TO EXCLUSION ONLY IF THE INCOME, SUBSEQUENTLY RETURNED, IS ON TH E BASIS OF THE ENTRIES AS RECORDED IN THE BOOKS OF ACCOUNTS AND OTHER DOCUMENTS MAINTAINED BY IT IN THE NORMAL COURSE OF BUSINESS ON OR BEFORE THE DATE OF SEARCH. IN THE INSTANT CA SE, BOTH THE AO AND THE LD. CIT(A) HAVE GIVEN A CATEGORICAL FINDING THAT THE ASSESSEE WAS N OT MAINTAINING ANY BOOKS OF ACCOUNTS (REFER PARA 13 OF THE ASSESSMENT ORDER AND THE APPE LLATE ORDER). THE ASSESSEE HAS NOWHERE REBUTTED THESE FINDINGS BY THE REVENUE AUTHORITIES. THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BENOY MATHAI , 311 ITR 226 (KER.) IS ALSO ON THE POINT. REFERENCE IN THIS CONTEXT MAY ALSO MA DE TO THE DECISION IN THE CASE OF CIT (DY.) V. H.V. SHANTHARAM , 261 ITR 435 (KAR). FURTHER, THE ASSESSEES STATIN G OF HIS MAINTAINING A BANK ACCOUNT IS, TO OUR MIND, OF NO C ONSEQUENCE. A COPY OF THE BANK ACCOUNT DOES NOT FORM A PART OF THE ASSESSEES ACCO UNTS, BUT RATHER OF HIS BANK. SECONDLY, ITS COPY WITH THE ASSESSEE DOES NOT LEND ITSELF TO THE INFERENCE THAT THE SAME WAS TO BE IT(SS)A.NO.28 /COCH/2006 8 DISCLOSED. IF IT IS SO CONSIDERED, ALL THE UNACCOU NTED MONEY IN THE BANK ACCOUNTS WOULD FALL TO BE CONSIDERED AS DISCLOSED INCOME. THE DI SCLOSURE, IT MAY BE NOTED, IS TO THE REVENUE DEPARTMENT AND TO NONE OTHER. AS SUCH, IT I S DIFFICULT TO SEE AS TO HOW THE REVENUES ACTION IN TREATING THE RETURNED INCOME FO R AY 1997-98 AFTER SEARCH AS UNDISCLOSED COULD BE FAULTED WITH IN LAW, AND WHICH THEREFORE IS UPHELD. WE DECIDE ACCORDINGLY. 12. IN THE RESULT, THE ASSESSEES APPEAL IS DI SMISSED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 03 JUNE, 2011 GJ COPY TO: 1. SHRI P.M.,KELUKUTTY, VELLAYIKODE, PANTHEERANKAVU , CALICUT. 2. THE DEPUTY COMMISSIONER OF INCOME TAX (INV.), CI RCLE-1, CALICUT. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, CALI CUT 4. THE COMMISSIONER OF INCOME-TAX, CALICUT. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. IT(SS)A.NO.28 /COCH/2006 9