JUDGMENT appellant, Commissioner of Income-tax, has filed this appeal against order of Income-tax Appellate Tribunal in I. T. (SS) No. 18/ IND/2001, dated February 26, 2003, for block period 1989-90 to 1999-2000. appeal has been admitted on following substantial question of law: Whether Income-tax Appellate Tribunal erred in upholding deletion of Rs. 1,91,550 made by Commissioner of Income-tax (Appeals) in view of section 158BB(1)(ca) of Income-tax Act, in facts and circumstances of case? facts giving rise to above question are that in search and seizure carried out under section 132 of Income-tax Act, 1961, in premises of maternal uncle of assessee, gold and jewellery of value of Rs. 2,21,710 and silver jewellery of value of Rs. 18,79,692 total Rs. 21,01,402 was found and was seized. During this period assessee had filed return showing his income as nil. Accordingly, Assessing Officer assessed undisclosed income at Rs. 1,91,550 as assessee did not furnish returns of income for assessment years covered under block period. assessee disputed assessment before Commissioner of Income-tax (Appeals)-I, Indore, who by his order dated April 21, 2001, in Appeal No. I. T. 262/2000-01/55, deleted undisclosed income assessed by Assessing Officer. While allowing appeal, Commissioner of Income-tax (Appeals) relied on decision of Income-tax Appellate Tribunal, Indore Bench, in case of Ramesh Kothari v. ACIT in Appeal No. I. T. (SS)/62/IND/1997 dated December 11, 2000. appellant s appeal to Income-tax Appellate Tribunal against decision of Commissioner of Income-tax (Appeals) was dismissed. It is against this decision of Income-tax Appellate Tribunal that present appeal has been filed which has been admitted on question stated above. Learned counsel for Department submits that section 158BB(1)(c) has been amended by Finance Act, 2002, with retrospective effect from July 1, 1995, and new clause (ca) has been inserted, which reads as under: 158BB.(1) undisclosed income of block period shall be aggregate of total income of previous years falling within block period computed in accordance with provisions of this Act, on basis of evidence found as result of search or requisition of books of account or other documents and such other materials or information as are available with Assessing Officer and relatable to such evidence, as reduced by aggregate of total income, or, as case may be, as increased by aggregate of losses of such previous years, determined, ... (ca) where due date for filing return of income has expired, but no return of income has been filed, as nil, in cases not falling under clause (c). contention of learned senior counsel, therefore, is that credit given for sum of Rs. 1,91,550 for amount of income below taxable limit during block period could not have been given unless return had been filed during this period. Reliance has also been placed on recent judgment of this court in Dr. Brijesh Lahoti v. CIT [2006] 282 ITR 349 (I. T. A. No. 29 of 2002 decided on December 13, 2005), in which question whether income amounting to Rs. 44,800 of assessee was undisclosed income in hands of assessee was answered against assessee in facts and circumstances of case, as same was not disclosed to Department before date of search. question raised by appellant before us is with reference to applicability of section 158BB(1)(ca). Though said provision was inserted retrospectively with effect from July 1, 1995, amendments/substitution was made by Finance Act, 2002. It is, therefore, clear that prior to year 2002, provision was not on statute book and it was brought on statute book in that year only, though with retrospective effect from July 1, 1995. In case in hand, order passed by Commissioner of Income-tax (Appeals), Indore, is dated April 20, 2001, and apparently, said provision being not in existence, there was no occasion for Commissioner of Income-tax (Appeals) to examine whether credit could be given or not for said sum of Rs. 1,91,550 in view of provisions of clause (ca). Under these circumstances, credit given on assumption that amount represented income below taxable limit for which it was not necessary to file return, did not suffer from any infirmity or illegality. Income-tax Appellate Tribunal has upheld deletion made by Commissioner of Income-tax (Appeals). In facts and circumstances of present case, therefore, it is manifest that though retrospective, provisions of section 158BB(1)(ca) not being on statute book, could not be invoked by Department to deny benefit otherwise available to assessee for which assessment was concluded before date of amendment and even appeal. question is therefore, answered against Department and in favour of assessee. There shall be no order as to costs of this appeal. *** COMMISSIONER OF INCOME TAX v. PANKAJ KUMAR JAIN