Dr. Udgeath Dhir, Agra V. A..C.I.T., Central Citcle, Agra

ITSSA 5/AGR/2012

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0919 (ITAT-AGRA)
• Duration Of Justice: 8 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-02-2014
• Assessment Year: misc
• Appeal Filed On: 20-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL BAJPAI
• Keywords: Search and seizure; Document seized; Reasonable cause; Block assessment; Documents seized
• Section: 158BC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH: AGRA BEFORE SHRI LALIET KUMAR, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEM BER IT(SS)A. NO.05 /AGRA/2012 (BLOCK PERIOD: 01/04/1997 TO 24/04/2003) DR. USHAST DHIR 3-A, RAM NAGAR COLONY, AGRA PAN: AMGPD1554Q (APPELLANT) VS.. ACIT, CENTRAL CIRCLE AGRA (RESPONDENT) IT(SS)A. NO. 06 /AGRA/2012 (BLOCK PERIOD: 01/04/1997 TO 24/04/2003) DR. UDGEATH DHIR 3-A, RAM NAGAR COLONY, AGRA PAN: AFPPD6557Q (APPELLANT) VS.. ACIT CENTRAL CIRCLE AGRA (RESPONDENT) APPELLANT BY SHRI DEEPENDRA MOHAN, C.A. RESPONDENT BY SHRI SUNIL BAJPAI, CIT DR ORDER PER LALIET KUMAR, J.M.: THESE APPEALS ARE FILED BY ABOVE NAMED ASSESSEES, F EELING AGGRIEVED BY THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APP EALS) IN BLOCK ASSESSMENT VIDE ORDER DATED 23RD AUGUST 2011 ON THE FOLLOWING GROUNDS: DATE OF HEARING 24.02.2021 DATE OF PRONOUNCEMENT 02.03.2021 IT(SS)A NO. 05 & 06/AGRA/2012 2 1. THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN HOLDING THAT CHARGING OF INTEREST ON ASSESSED WAS IN ORDER AND DISMISSING ALL THE GROUNDS, SUBMISSIONS AND CASE LAWS RELIED UPON RELEVANT THERETO. 2. THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN HOLDING THAT INTEREST U/S158BFA IS NOT COMPENSATORY IN NATU RE AND IS PENAL IN NATURE. 3. THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN HOLDING THAT THERE WAS NO SUFFICIENT CAUSE FOR DELAY IN FIL ING OF RETURN WHEREAS THE ASSESSEE HERSELF HAS CHALLANGED THE SEARCH PROC EEDINGS AND BEFORE THE AMENDMENT IN LAW WITH RETROSPECTIVE EFFE CT, WHEN SEARCH ITSELF WAS ILLEGAL, HOW THE ASSESSEE COULD HAVE FIL ED THE RETURN. 4. THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN HOLDING THAT ASSESSMENT PROCEEDINGS AND ASSESSMENT ORDER IS WELL IN ORDER EITHER FROM THE ANGLE OF LAW OR ON FACTS. 5. THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN NOT DECIDING THE GROUND RAISED RELATING TO CLAIM OF THE ASSESSEE THAT ASSESSMENT BEING TIME BARRED WITHOUT ANY SOUND REAS ON/BASIS. 6. THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN NOT DECIDING THE GROUND RAISED RELATING TO CLAIM OR THE ASSESSEE THAT ASSESSMENT BEING BAD IN LAW BECAUSE NO SEARCH WARRA NT WAS IN THE INDIVIDUAL NAME OF THE ASSESSEE AND ACCORDINGLY ASS ESSMENT COULD NOT BE MADE IN INDIVIDUAL CAPACITY AND IN HOLDING T HAT CASE LAWS RELIED UPON ARE NOT RELATED TO THE CASE OF THE ASSE SSEE. 7. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CAS E, SUBMISSIONS IN ASSESSMENT PROCEEDINGS AND IN 1ST APPEAL PROCEEDING S AS WELL AS STATEMENT OF FACTS AND GROUNDS OF APPEAL MAY KINDLY BE CONSIDERED AS PART OF THESE GROUNDS OF APPEAL. 8. BECAUSE ON FACTS AND IN CIRCUMSTANCES OF THE CAS E, APPELLANT GRAVE LEAVE TO WITHDRAW, MODIFY OR WITHDRAW ANY GROUND OF APPEAL WITH THE KIND PERMISSION OF YOUR HONOUR. BRIEF BACKGROUND IT(SS)A NO. 05 & 06/AGRA/2012 3 2. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER RE CORDS THE FACTS OF THE PRESENT CASE AS UNDER: THE ASSESSEE IS SON OF A LEADING MEDICAL PRACTITION ER DR. G.G. DHIR OF SKIN DISEASE AT AGRA. A SEARCH WAS CONDUCTED ON 24.04.20 03 AT THE RESIDENTIAL PREMISES OF DR. G.G. DHIR AND BANK LOCKERS IN THE N AME OF DR. G.G. DHIR AND HIS FAMILY MEMBERS INCLUDING ASSESSEE SHRI UDGEATH DHIR, SHRI USHAHT DHIR AND SMT. VIJAY DHIR AND SUBSEQUENTLY ACTION WAS TA KEN IN RESPECT OF THE OPERATION OF LOCKERS BELONGING TO THE MEMBERS OF TH E FAMILY. DURING THE SEARCH, CASH AND JEWELLERY AS MENTIONED BELOW WERE FOUND: S.NO. FOUND FROM CASH RS. JEWELLERY NET WT. GMS VALUE 1. RESIDENCE OF DR. G.G. DHIR AT 3A RAM NAGAR COLONY, AGRA 22820 65 27500 2. LOCKER NO. 1/25, PNB DAYAL BAGH, AGRA JOINT NAMES OF DR. G.G. DHIR AND SMT. VIJAY DHIR 6312700 - - 3 LOCKER NO. 485, PNB SURYA NAGAR, AGRA IN THE NAME OF SHRI GIRIDHAR GOPAL 436200 3382.250 1568299 4 LOCKER NO. 37 SBI, SADAR BAZAR AGRA IN JOINT NAME OF SMT. VIJAY DHIR AND DR.G.G. DHIR 548000 - - 5 LOCKER NO. 345, SBI CHIPITOLA, AGRA JOINT NAMES OF DR. G.G. DHIR AND SMT. VIJAY DHIR 10100 - - 6 LOCKER NO. 281, PNB SURYA NAGAR, IN THE NAME DR. G.G. DHIR AND SMT. VIJAY DHIR 530000 1040.850 521908 7 LOCKER NO. 314, PNB SURYA NAGAR, IN THE NAME SMT. VIJAY DHIR 567300 - - 8 LOCKER NO. 30, PUNJAB & SIND BANK, GHATIA AZAM KHAN, AGRA, IN THE NAMES SMT. VIJAY AND GIRIDHAR GOPAL 1132000 - - 9 LOCKER NO. 109 SBI, SADAR BAZAR, AGRA IN THE NAMES GOPALKISHAN AND SH. UDIT DHIR 514000 294.500 123101 10 LOCKER NO. 645 SBI, SADAR BAZAR, AGRA IN THE NAMES SMT. VIJAY DHIR AND SHRI UDGEATHDHIR 2100000 - - IT(SS)A NO. 05 & 06/AGRA/2012 4 11 LOCKER NO. 59 SBI, SADAR BAZAR, AGRA IN THE NAMES VIBHA AND RAMAN 562800 - - 12 LOCKER NO. 98 PNB, SURYA NAGAR, AGRA IN THE NAMES SHRIUSHASTDHIR 1664900 231.140 102755 IN VIEW OF SEARCH OF LOCKER U/S 132(1) OF THE IT AC T, 1961 IN NAME OF FAMILY MEMBERS, OF DR. G.G. DHIR NAMELY SMT. VIJAY DHIR, W IFE & SONS SHRI UDGEATH DHIR AND USHASTH DHIR, NOTICES U/S 158BC WERE ISSUE D TO THEM. THAT IN THE CASE OF ASSESSEE SHRI UDGEETH DHIR ON 16.10.2003 TO FILE A TRUE AND CORRECT RETURN OF TOTAL INCOME INCLUDING UNDISCLOSED INCOME IN RESPECT OF WHICH HE IS ASSESSABLE AS INDIVIDUAL UNDER THE I.T. ACT, 1961 F OR THE BLOCK PERIOD 1.4.1997 TO 24.04.2003 AS MENTIONED IN SECTION 158B (A)OF THE I.T. ACT, 1961 WITHIN 30 DAYS OF THE SERVICE C\1F THE NOTICE. THE NOTICE WAS SERVED ON 17.12.2003. THE ASSESSEE DID NO FILE THE RETURN OF INCOME AS REQUIRED. THEY I.E. SMT VIJAY DHIR, SHRI UDGEETH DHIR AND SHRI USH AHT DHIR CHALLENGED THE VALIDITY OF ACTION U/S 158BC IN THEIR OASES AND FIL ED WRIT PETITION BEFORE THE HON'BLE ALLABAHAD HIGH COURT (CIVIL MISC. WRIT PETI TION NO.284 OF 2004) ON 18.04.2004. THE HON'BLE HIGH COURT ORDERED TO; CONT INUE THE ASSESSMENT PROCEEDINGS BUT NO FINAL ORDER WOULD BE PASSED TILL DECISION OF WRIT PETITIONS. THE ASSESSEES SMT VIJAY DHIR, SHRI UDGEETH DHIR AND SHRI USHAHT DHIR DID NOT COOPERATED IN THE ASSESSMENT PROCEEDINGS. RESPE CTFULLY FOLLOWING THE DIRECTIONS OF HON'BLE HIGH COURT AN EFFORT WAS MADE TO CONTINUE THE ASSESSMENT PROCEEDINGS IN THESE CASES BUT THEY DID NOT COOPERATE IN THE ASSESSMENT PROCEEDINGS ON THE GROUND THAT THEY HAVE CHALLENGED THE JURISDICTION U/S 158BC IN THEIR CASES. THE ASSESSING OFFICER HAD MADE THE ADDITIONS IN THE HANDS OF THE ASSESSEES. 3. FEELING AGGRIEVED BY THE ORDER PASSED BY THE ASS ESSING OFFICER, THE ASSESSEE CHALLENGED THE ORDER BEFORE THE COMMISSIONER OF INC OME-TAX (APPEALS). THE COMMISSIONER (APPEALS) IN PARAGRAPH 6.5, IN THE CAS E OF DR UDGEATH DHIR RECORDED AS UNDER: IT(SS)A NO. 05 & 06/AGRA/2012 5 6.5 IN GROUND NO. 6, THE APPELLANT HAS CONTENDED T HAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, CIT(A) MAY GIVE ANY OTHE R RELIEF WHICH HE CONSIDERS DEEMED TO BE FIT. DURING THE COURSE OF TH E APPELLATE PROCEEDING OF THE APPELLANT, ON GOING THROUGH THE CASE RECORDS RE LATING TO ALL THE FAMILY MEMBERS INCLUDING DR. G.G. DHIR, I HAVE FOUND THAT THE DEPARTMENT HAS CONSIDERED THE CASH OF RS. 21,00,000/- IN THE HAND OF DR. G.G. DHIR ON SUBSTANTIVE BASIS AND WHILE PASSING THE ORDER OF DR . G.G. DHIR, IT HAS BEEN MENTIONED BY THE THEN AO THAT THIS AMOUNT WOULD BE CONSIDERED ON PROTECTIVE BASIS IN THE HAND OF THE APPELLANT. HOWE VER, WHILE PASSING THE ORDER OF THE APPELLANT, NOTHING HAS BEEN STATED BY THE AO, WHETHER THIS AMOUNT IS CONSIDERED IN THE HAND OF THE APPELLANT O N PROTECTIVE BASIS OR NOT. THOUGH THE ADDITION OF THIS AMOUNT HAS BEEN DE LETED BY THE HON'BLE TRIBUNAL FROM THE INCOME OF DR. G.G. DHIR , THIS DE CISION OF THE TRIBUNAL HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND AN APPEAL H AS BEEN FILED BY THE DEPARTMENT TO HON'BLE ALLAHABAD HIGH COURT ON FOLLO WING GROUNDS RELATING TO CASH AND JEWELLRY OWNED UP BY THE WIFE AND SONS OF DR. G.G. DHIR INCLUDING CASH OF RS. 21,00,000/- OWNED UP BY THE A PPELLANT WHICH WAS CONSIDERED IN THIS APPEAL:- '1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE HON'BLE ITAT HAD ERRED IN LAW IN HOLDING THAT UNDISCLOSED I NCOME IN THE FORM OF CASH &JEWELLERY FOUND & SEIZED FROM VARIOUS BANK LOCKERS BE CONSIDER IN THE HANDS OF THE WIFE & SONS OF THE ASS ESSEE ONLY BECAUSE THEY OWNED IT UP WHEN ,IT WAS ESTABLISHED THAT THEY HAD NO KNOWN SOURCE TO HAVE ACCUMULATED SO MUCH OF CASH AND JEWE LLERY WHEREAS THE ASSESSEE HAD HUGE UNDISCLOSED PROFESSIONAL INCO ME. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE ITAT HAS ERRED IN LAW IN IGNORING THE FACT THAT THE ASSESSING OFFICER HAD INITIATE THE PROCEEDINGS U/S 158BC TO CONDUCT E NQUIRY AS TO WHETHER THE ALLEGED: OWNER HAD THE CAPACITY TO ACCU MULATE SO MUCH OF UNDISCLOSED INCOME. BUT THEY DID NOT CO-OPERATE DESPITE THE FACT THE HON'BLE HIGH COURT HAD GIVEN SPECIFIC DIRECTION WHILE ADMITTING THEIR WRIT PETITION THAT THE ASSET. PROCEEDINGS WIL L CONTINUE WITHOUT PASSING THE FINAL ORDER.' IT IS UNDISPUTED FACT THAT THE CASH OF RS. 21,00,00 0/- FOUND IN LOCKER NO. 645 IS UNEXPLAINED AND IT CAN BE ONLY IN THE KNOWLEDGE OF THE DHIR FAMILY AS TO THIS CASH BELONGS TO WHOM. IF THIS CASH BELONGS TO DR. G.G. DHIR, IT CAN BE OWNED UP BY HIM DURING THE PROCEEDING BEFORE HON'BL E HIGH COURT AND THEN IT(SS)A NO. 05 & 06/AGRA/2012 6 THE APPEAL FILED BY THE DEPARTMENT BEFORE THE HON'B LE HIGH COURT WOULD BECOME FINAL AND THE AMOUNT OF RS. 21,00,000/- DECL ARED BY THE APPELLANT WOULD GET AUTOMATICALLY DELETED AS THE SAME INCOME CANNOT BE TAXED IN TWO DIFFERENT HANDS. IN VIEW OF ABOVE APPEAL FILED BY T HE DEPARTMENT, SINCE CHARGING OF THIS AMOUNT TO TAX IN THE HAND OF DR. G .G. DHIR ON SUBSTANTIVE BASIS HAS NOT REACHED FINALITY DUE TO PENDENCY OF A PPEAL BEFORE THE HON'BLE ALLAHABAD HIGH COURT, THIS AMOUNT WOULD BE CONSIDER ED TO BE TAXED IN THE HANDS OF APPELLANT ON PROTECTIVE BASIS TILL A FINAL DECISION IS TAKEN BY THE HON'BLE ALLAHABAD HIGH COURT WITH REGARD TO CHARGIN G OF THIS AMOUNT TO TAX IN THE HAND OF DR.G.G. DHIR. IF THIS AMOUNT IS DECI DED TO BE TAXED IN THE HAND OF DR. G.G. DHIR, THIS AMOUNT WOULD AUTOMATICALLY G ET DELETED IN THE HAND OF THE APPELLANT, OTHERWISE THIS AMOUNT WOULD BE TAXED IN THE HAND OF THE APPELLANT AS HIS INCOME AS DECLARED BY HIM. THEREFO RE, THE AO IS DIRECTED TO TREAT THE DEMAND RAISED IN THE HAND OF THE APPELLAN T VIDE THE ASSESSMENT ORDER DATED 30.12.2010 (IN WHICH ONLY AMOUNT OF RS. 21 LAC HAS BEEN TAXED), IS BEING PROTECTIVE DEMAND TILL A FINAL DECISION IS TAKEN BY THE HONBLE HIGH COURT ABOUT THE TAXABILITY OF THIS AMOUNT IN THE HA ND OF DR. G.G. DHIR AND THEN TAKE ACTION AS PER LAW CONSIDERING MY ABOVE OB SERVATION. IN VIEW OF THIS DECISION, THE GROUND NO.6 IS ALLOWED FOR STATI STICAL PURPOSES TO TREAT THE DEMAND RAISED IN CASE OF THE APPELLANT VIDE THE ASS ESSMENT ORDER UNDER APPEAL AS PROTECTIVE DEMAND TILL A FINAL DECISION I S TAKEN IN CASE OF DR. G.G. DHIR IN RESPECT OF TAXABILITY OF THIS AMOUNT. SIMILAR OBSERVATION WERE MADE BY THE COMMISSIONER ( APPEALS) IN OTHER CASE OF APPELLANT SH. USHAST DHIR. 4. FEELING AGGRIEVED BY THE ORDER PASSED BY THE COM MISSIONER (APPEALS) THE ASSESSEE PREFERRED THE APPEAL ON THE GROUND MENTION ED HEREINABOVE BEFORE US. 5. THE LD. AR FOR THE ASSESSEE HAD SUBMITTED THAT THE APPEAL OF THE DEPARTMENT HAD BEEN DECIDED BY THE JURISDICTIONAL H IGH COURT IN THE MATTER OF FATHER OF ASSESSEE , WHEREIN IT WAS HELD THAT THE A MOUNT FOUND FROM THE LOCKERS OF THE ASSESSEE WOULD BE CONSIDERED AS THE INCOME O F THE FATHER OF THE ASSESSEE IT(SS)A NO. 05 & 06/AGRA/2012 7 NAMELY DR GG DHIR. IN VIEW OF THE ABOVE IT WAS SUBM ITTED THAT THERE WILL BE THE REDUCTION IN PRINCIPAL TAXABLE INCOME OF THE ASSESS EE AND IN THE INTEREST LIABILITY. HE HAD SUBMITTED THAT BOTH THE APPEALS MAY BE REMAN DED BACK TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE TAXABLE INCOME OF T HE ASSESSEE IN TERM OF BLOCK ASSESSMENT AND CHARGEABILITY OF INTEREST THEREON, A FTER GIVING THE EFFECT TO THE ORDER OF THE HONBLE HIGH COURT. 6. PER CONTRA THE LANDED CIT DR HAD SUBMITTED A WRI TTEN SYNOPSIS TO THE FOLLOWING EFFECT : IN THESE APPEALS, THE MAIN DISPUTE IS WITH REGARD TO CHARGEABILITY OF INTEREST U/S 158BFA(1) WHICH IS CHARGEABLE FOR THE DELAY IN FILI NG OF THE RETURN. THE ISSUE HAS BEEN COMPREHENSIVELY DEALT BY LD. CIT(A) IN PARA 6.4.12 (IN THE CASE OF DR. UDGEATH DHIR, ITA NO. 06/AGR/2012) OF HIS ORDER. FOR THE SAKE OF CONV ENIENCE THE SAME IS REPRODUCED AS UNDER : ' I HAVE ALREADY DEALT WITH SUCH REASONS GIVEN BY THE LD. AR EXPLAINING THE DELAY IN FILING OF RETURN AND COULD NOT FOUND THEM SATISF ACTORY AS DISCUSSED IN PARA 6.4.2 TO 6.4.4, HOWEVER, ALL THE ABOVE REASONS AS GIVEN B Y THE LD. AR AT THE END OF THE HEARING WERE AGAIN CONSIDERED. THE NOTICE U/S 158BC WAS ISSUED TO THE APPELLANT ON 16.10.2003 AND HE WAS GIVEN TIME OF 30 DAYS SINC E THE DATE OF SERVICE OF NOTICE FOR FILING OF RETURN OF UNDISCLOSED INCOME A ND THIS NOTICE WAS SERVED ON 18.10.2003 THEREFORE, THE APPELLANT WAS REQUIRED TO FILE HIS RETURN OF INCOME BY 18.11.2003. HOWEVER, INSTEAD OF FILING OF RETURN OF UNDISCLOSED INCOME IN TIME, THE APPELLANT UNDER THE ADVICE OF HIS COUNSEL DECID ED TO CHALLENGE THE VALIDITY OF NOTICE U/S 158BC ON THE GROUND OF INVALIDITY OF SEA RCH WARRANT AND EVEN FOR FILING OF WRIT PETITION, HE TOOK ABOUT 3 MONTH TIME BECAUS E THE WRIT PETITION WAS FILED ON 18.02.2004. LATER, THIS WRIT PETITION OF THE APP ELLANT WAS DISMISSED BECAUSE IT WAS FILED ON WRONG INTERPRETATION OF THE PROVISIONS RELATING TO SEARCH AND SEIZURE OPERATION. THOUGH IT IS CORRECT THAT FOR FINAL DISP OSAL OF WRIT PETITION OF THE APPELLANT, IT TOOK ABOUT 6 YEARS, THE FACT IS THAT THE OPERATION OF THE NOTICE U/S 158BC DT. 16.10.2003 ISSUED TO THE APPELLANT WAS NE VER STAYED BY THE HON'BLE HIGH COURT DURING THE PENDENCY OF DECISION ON HIS W RIT PETITION BECAUSE IN THE INTERIM ORDER DT. 26.02.2004, THE HON'BLE HIGH COUR T HAS CLEARLY STATED THAT THE ASSESSMENT PROCEEDING MAY GO ON BUT NO FINAL ORDER WILL BE PASSED. THEREFORE, IN VIEW OF THIS INTERIM ORDER, IT BECAME VERY CLEAR TH AT THE APPELLANT WAS REQUIRED TO IT(SS)A NO. 05 & 06/AGRA/2012 8 CO-OPERATE WITH THE DEPARTMENT IN THE ASSESSMENT PR OCEEDING THAT WAS STARTED BY ISSUING OF NOTICE U/S 158BC BUT INSTEAD OF FILIN G OF RETURN U/S 158BC, THE APPELLANT FILED A PETITION DATED 08.07.2004 IN WHIC H, HE AGAIN OBJECTED ON ISSUANCE OF NOTICE U/S 158BC, IGNORING THE FACT THA T AFTER CONSIDERING HIS OBJECTION, THE HON'BLE HIGH COURT HAS ALREADY ORDER ED FOR CONTINUING THE ASSESSMENT PROCEEDING. THEREFORE, IT WAS INCUMBENT UPON THE APPELLANT TO FILE THE RETURN OF INCOME U/S 158BC IMMEDIATELY AFTER PA SSING OF INTERIM ORDER BY THE HON'BLE ALLAHABAD HIGH COURT. THOUGH THE APPELLANT DID NOT FILE THE RETURN, HE PROPOSED FOR ADJUSTMENT OF SEIZED CASH AGAINST HIS TAX LIABILITY. I HAVE ALREADY DISCUSSED THIS ISSUE IN SUB-PARA NO. 6.4.9 & 6.4.10 THAT WITHOUT FILING OF BLOCK RETURN, THE UNDISCLOSED INCOME OF AN ASSESSEE CANNO T BE DETERMINED AND HENCE, QUESTION OF ADJUSTMENT OF SEIZED CASH IN ADVANCE CA NNOT ARISE DURING THE BLOCK ASSESSMENT PROCEEDING. EVEN AFTER FILING OF THIS PE TITION, LATER DURING THE ASSESSMENT PROCEEDING OF HIS FATHER, DR. G.G. DHIR, THE APPELLANT FILED AN AFFIDAVIT DT. 18.05.2005 SOLEMNLY AFFIRMING THAT THE CONTENTS OF LOCKER NO. 645 WITH PNB SURYA NAGAR, AGRA BELONGED TO HIM AND AS PER THE FA CT OF THIS CASE, RS. 21,00,000/- WAS FOUND FROM THIS LOCKER, THEREFORE, BY FILING THIS AFFIDAVIT, THE APPELLANT OWNED UP THE CASH OF RS. 21,00,000/-. THE REFORE, IT WAS MORE NECESSARY FOR HIM TO FILE HIS RETURN OF INCOME U/S 158BC TO D ISCLOSE HIS UNACCOUNTED CASH OF RS. 21,00,000/- AS OWNED UP BY HIM IN HIS AFFIDAVIT , WHICH WAS PENDING AT THAT TIME BUT EVEN AFTER FILING OF AFFIDAVIT ON 18.05.20 05, THE APPELLANT DID NOT FILE HIS RETURN OF INCOME U/S 158BC AND WHEN HE FILED RETURN OF INCOME U/S 158BC ON 21.09.2010 AFTER DISMISSAL OF HIS WRIT PETITION, HE IS STILL TAKING A CONFUSING STAND STATING THAT THIS RETURN OF INCOME WAS FILED UNDER PROTEST ON THE GROUND THAT HE WAS UNDER MEDICAL STUDY, THEN HOW COULD HE ACCUMULA TE SUCH HANDSOME INCOME FOUND FROM THE LOCKER WITHOUT HAVING ANY SOURCE OF INCOME. SUCH STAND OF THE APPELLANT FOR FLING OF RETURN UNDER PROTEST IS CONT RARY TO HIS STAND TAKEN AT THE TIME OF FILING OF AFFIDAVIT WHEN HE OWNED UP THE CA SH OF RS. 21,00,000/- TO PREVENT THE DEPARTMENT TO TAX THIS AMOUNT IN THE HA ND OF HIS FATHER DR. G.G. DHIR. THOUGH THE DEPARTMENT DID NOT RELY ON HIS AFF IDAVIT AND MADE ADDITION IN THE HAND OF DR. G.G. DHIR, THE HON'BLE TRIBUNAL DEL ETED THIS ADDITION TAKING COGNISANCE OF THIS AFFIDAVIT. THE LD. AR'S CONTENTI ON WAS THAT THIS ADDITION WAS DELETED IN THE HAND OF DR. G.G. DHIR BECAUSE THE LO CKER WAS OWNED UP BY THE APPELLANT AND THE TRIBUNAL DELETED THE ADDITION ON THE CONDITION THAT AN ENQUIRY HAS TO BE MADE AND ADDITION SHOULD BE MADE AFTER EN QUIRY IN THE HAND OF THE PERSONS TO WHOM THE LOCKER BELONGED AND SINCE NO EN QUIRY WAS MADE BY THE AO BEFORE MAKING ADDITION OF THE AMOUNT OF RS. 21,00,0 00/- IN THE HAND OF THE APPELLANT AND HE JUST ACCEPTED THIS AMOUNT AS DECLA RED BY HIM WHICH AS PER HIM WAS UNDER PROTEST, ASSESSMENT OF THIS AMOUNT IN THE HAND OF THE APPELLANT IS NOT JUSTIFIED. SUCH ARGUMENT OF THE LD. AR CLEARLY SHOW S THAT SINCE BEGINNING, IT IS BEING TRIED TO MAKE CONTRARY CLAIMS WITH RESPECT TO THIS AMOUNT TO PREVENT THIS AMOUNT GETTING TAXED IN APPROPRIATE HAND, THOUGH IT IS UNDISPUTED FACT THAT THIS AMOUNT IS UNEXPLAINED. AS I HAVE ALREADY MENTIONED IN THIS ORDER THAT THERE IS NO PROVISION IN THE INCOME-TAX ACT TO FILE RETURN UNDE R PROTEST, THEREFORE, WHATEVER INCOME IS DECLARED BY A PERSON, IT IS ACCEPTED A HI S INCOME AND DURING SCRUTINY, IF ANY FURTHER INCOME IS DETECTED BELONGING TO HIM, FU RTHER ADDITION IS MADE IN HIS IT(SS)A NO. 05 & 06/AGRA/2012 9 DECLARED INCOME. THE QUESTION OF MAKING INQUIRY INT O THE DECLARE INCOME OF THE APPELLANT DID NOT ARISE BECAUSE IT WAS ACCEPTED BY HIM IN AN AFFIDAVIT AS CORRECT WHILE DELETING THIS CASH FROM THE INCOME OF HIS FAT HER DR. G.G. DHIR. WHEN TAXABILITY OF THIS AMOUNT WAS CONSIDERED BY THE DEP ARTMENT IN THE HAND OF DR. G.G.DHIR, CONSIDERING THE FACT THAT HE WAS IN POSIT ION TO EARN THIS MUCH HUGE AMOUNT OF MONEY DUE TO HIS PROFESSION OF BEING A VE RY POPULAR DOCTOR SPECIALIZING IN SKIN DISEASE, A CLAIM WAS MADE BY T HE APPELLANT BY FILING AN AFFIDAVIT THAT THIS MONEY BELONGED TO HIM, KNOWING VERY WELL THAT HE DID NOT HAVE ANY SUBSTANTIAL SOURCE OF INCOME TO EARN THIS MUCH HUGE AMOUNT OF MONEY BUT NOW AFTER AN ORDER HAS BEEN PASSED BY THE HON'BLE T RIBUNAL DELETING THIS AMOUNT FROM THE INCOME OF DR. G.G. DHIR CONSIDERING HIS AF FIDAVIT, HE IS CLAIMING THAT HE IS NOT HAVING ANY SOURCE OF INCOME EXCEPT EARNING STIP END AT THAT TIME BY WHICH IT WAS NOT POSSIBLE TO EARN THIS MUCH HUGE AMOUNT OF M ONEY AND RETURN FILED BY HIM IS UNDER PROTEST. SUCH CONTRADICTORY CLAIMS OF THE APPELLANT ITSELF SHOWS THAT HE WAS DELIBERATELY DELAYING THE FILING OF RETURN O F INCOME BY RAISING SUCH ISSUES WHICH WERE NOT BACKED BY LAW. EVEN THERE WAS NO DEL AY IN PROVIDING COPY OF SEIZED DOCUMENTS BY THE DEPARTMENT. APPLICATION FOR OBTAINING THE VARIOUS SEIZED PAPER/DOCUMENTS WAS MADE BY THE APPELLANT ON 11.08.2010 AND THE SAME WAS PROVIDED IMMEDIATELY SO THAT THE APPELLANT COUL D FILE THE RETURN ON 21.09.2010. IN FACT AFTER INTERIM ORDER DATED 26.02 .2004 WAS PASSED BY THE HON'BLE HIGH COURT TO CONTINUE THE ASSESSMENT PROCE EDING, THERE WAS O VALID REASON FOR THE APPELLANT TO FURTHER DELAY THE FILIN G OF RETURN, ESPECIALLY IN THE LIGHT OF THE FACT THAT OWNERSHIP OF THIS MONEY WAS LATER, ACCEPTED BY HIM IN THE AFFIDAVIT DATED 18.05.2005. NOTICE U/S 158BC WAS IS SUED TO THE APPELLANT AS EARLY AS ON 16.10.2003 BUT RETURN OF INCOME WAS FILED ONL Y ON 21.09.2010 I.E. AFTER A PERIOD OF APPROXIMATELY 7 YEARS FOR WHICH NO BONAFI DE CAUSE FOR SUCH DELAY OF RETURN COULD BE EXPLAINED BY THE APPELLANT. CONTRAR Y TO ANY BONAFIDE CAUSE ON THE PART OF APPELLANT FOR SUCH DELAY, I FIND THAT T HE APPELLANT HAS DELIBERATELY DELAYED FILING OF RETURN BY MAKING CONTRADICTORY CL AIMS ABOUT THE TAXABILITY OF THE AMOUNT OF RS. 21,00,000/- WHICH WAS SEIZED FROM LOC KER NO. 645. THEREFORE, I FIND THAT DELAY IN FILING OF RETURN IS ATTRIBUTABLE TO T HE APPELLANT AND HENCE, HE IS VERY MUCH LIABLE FOR PAYING INTEREST U/S 158BFA(1) AS CO MPUTED BY THE AO IN THE ASSESSMENT ORDER AND HENCE, ALL THE THREE GROUNDS I .E. GROUND NOS 1,2 AND 3 TAKEN BY THE APPELLANT DISPUTING LEVY OF INTEREST U /S 158BFA(1) ARE DISMISSED. AS REGARDS TO VARIOUS CASE LAWS CITED BY THE LD.AR AS DISCUSSED IN PARA NOS. 5.1 TO 5.3, THESE CASE LAWS ARE FOUND TO BE EITHER PERTAIN ING TO NOT CHARGING OF INTEREST U/S 234A OR NOT CHARGING OF INTEREST U/S 158BFA(1) WHEN DELAY IN FILING OF RETURN OR NOT ATTRIBUTABLE TO THE ASSESSEE DUE TO DELAY IN RECEIVING PHOTOCOPIES OF SEIZED DOCUMENTS FROM THE DEPARTMENT. I HAVE ALREADY DISCU SSED IN DETAILS IN THIS ORDER THAT CHARGING OF INTEREST U/S 158BFA(1) IS NOT SIMI LAR TO CHARGING OF INTEREST U/S 234A AND THERE IS NO DELAY IN SUPPLYING SEIZED DOCU MENTS TO THE APPELLANT FROM THE DATE OF APPLICATION GIVEN BY HIM AND HE COULD A LSO NOT EXPLAIN ANY OTHER REASONABLE CAUSE FOR DELAY IN FILING OF RETURN. THE REFORE FACTS OF ALL THESE CASES BEING DIFFERENT THAN THE FACTS OF THE CASE OF THE A PPELLANT, THESE CASE LAWS ARE NOT APPLICABLE IN CASE OF THE APPELLANT. ' IT(SS)A NO. 05 & 06/AGRA/2012 10 2. THE FACTS AND THE LEGAL POSITION AS DISCUSSED IN THE CIT(A)'S ORDER ARE UNDISPUTED. DURING THE COURSE OF HEARING BEFORE THE HON'BLE BEN CH, LD. AR'S ONLY ARGUMENT WAS THAT THE INCOME FOR WHICH THE ASSESSMENT WAS MADE FOR TH ESE ASSESSEES HAS ALREADY BEEN FOUND TO BE ASSESSABLE IN THE HANDS OF DR. G.G. DHI R IN VIEW OF AN ORDER BY HON'BLE ALLAHABAD HIGH COURT. THOUGH, I HAVE NOT GONE THROU GH THE REFERRED HIGH COURT ORDER, THE SAME WOULD NOT AFFECT THE MERIT OF THE ISSUE RA ISED IN THESE APPEALS. AS LD. AR COULD NOT MAKE A CASE FOR DISPUTING THE PROPRIETY OF CHAR GING INTEREST U/S 158BFA(1), THESE APPEALS DESERVE TO BE DISMISSED. THE QUANTUM OF INC OME ON WHICH SUCH INTEREST IS LEVIABLE IS A DIFFERENT ISSUE AND THE SAME MAY BE C ONSIDERED BY THE A.O. IN LIGHT OF THE HIGH COURT ORDER IN THE CASE OF DR. G.G. DHIR. THE ISSUE OF QUANTUM HAS NOT BEEN RAISED IN THESE APPEALS AND HENCE THE SAME IS IMMATERIAL F OR DISPOSAL THESE APPEALS. 3. AS THESE ASSESSEES THEMSELVES HAVE ADMITTED THE INCOME RETURNED BY THEM IN THEIR RESPECTIVE RETURNS, WHETHER SUCH RETURNED INC OME CAN BE DISTURBED IS A MATTER WHICH CAN BE DECIDED BY THE ASSESSING OFFICER ONLY. THIS HON'BLE BENCH IS CONCERNED ONLY WITH THE ISSUE OF CHARGEABILITY OF INTEREST U/ S 158 BFA(1) FOR THE DELAY IN FILING OF RETURN AND IT IS PRAYED THAT THE SAME MAY KINDLY BE DECIDED IN FAVOUR OF REVENUE BY DISMISSING THESE APPEALS. 7. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD, INCLUDING THE JUDGMEN TS CITED AT BAR DURING THE COURSE OF HEARING BY BOTH THE PARTIES. AS IS CLEAR FROM THE ORDER PASSED BY THE COMMISSIONER(APPEALS) AS WELL AS THE ORDER OF THE H ONBLE HIGH COURT THAT THE ADDITIONS WERE MADE IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS AND IN THE PROCEEDINGS OF THE FATHER NAMELY DR GG DHIR, WHERE SUBSTANTIVE ADDITION WAS MADE, THE SAME AMOUNT HAS BEEN HELD TO BE AN INCOM E OF THE FATHER. ACCORDINGLY ONCE THE INCOME HAS BEEN CHARGED IN THE HANDS OF THE FATHER, IT CANNOT BE AGAIN CHARGED IN THE HANDS OF THE ASSESSE ES BEFORE US. 8. HAVING HELD SO, THE NEXT QUESTION WHICH IS REQUI RED TO BE ANSWERED IS WITH RESPECT TO CHARGEABILITY OF THE INTEREST ON THE ASS ESSEES INCOME PURSUANT TO THE IT(SS)A NO. 05 & 06/AGRA/2012 11 BLOCK ASSESSMENT IN THE HANDS OF THE ASSESSEE BEFOR E US. IN OUR VIEW THE MATTER INVOLVES THE COMPUTATION OF INCOME OF THE ASSESSEE AFTER TAKING INTO ACCOUNT THE JUDGMENT OF THE HONBLE HIGH COURT IN THE CASE OF T HE FATHER AND EFFECT OF THE SAID DECISION ON THE CHARGEABILITY OF INTEREST. IT IS AL SO ADMITTED TO THE LD. CIT(A) THAT ONCE THE HIGH COURT HOLDS THE TAXABILITY OF THE IMP UGNED ADDITION IN THE HANDS OF ASSESSEES FATHER, THE ADDITION SO MADE IN THE HAND S OF ASSESSEE SHALL AUTOMATICALLY STAND DELETED. WE ARE ALSO OF THE OPI NION THAT THE COMPUTATION OF INTEREST IS INTEGRALLY CONNECTED TO THE COMPUTATION OF INCOME ASSESSED. THE PRIMARY DUTY OF COMPUTATION OF INCOME AND INTEREST THEREON LIES WITH THE ASSESSING OFFICER AND, THEREFORE, IT WOULD BE IN TH E FITNESS OF THE FACTS, THE MATTER PERTAINING TO COMPUTATION OF INCOME AND INTEREST IS REQUIRED TO BE REMANDED TO THE FILE OF ASSESSING OFFICER. 9. IN THE LIGHT OF THE ABOVE WE REMAND THE MATTER T O THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO COMPLY WITH THE DECIS ION OF THE HONBLE HIGH COURT TREATING THE AMOUNT RECOVERED FROM THE IMPUGNED LOC KERS AS THE INCOME OF DR GG DHIR AND THEREAFTER DECIDE CHARGEABILITY OF THE INT EREST ON THE RESIDUAL AMOUNT AFTER DELETING THE AMOUNT OWNED BY THE FATHER. WE M AKE IT ABUNDANTLY CLEAR THAT THE DATE OF CHARGEABILITY OF THE INTEREST ON THE RE SIDUAL INCOME WOULD BE THE DATE WHEN SUCH AMOUNT WAS DUE FOR TAXATION, IN TERMS OF THE BLOCK ASSESSMENT ORDER. IT(SS)A NO. 05 & 06/AGRA/2012 12 10. IN THE LIGHT OF THE ABOVE THE APPEALS OF THE AS SESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/03/2021. SD/- SD/- (DR. M.L MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER