Order in T.C.A.No.176 of 2010 (P.K.Ganeshwar -Vs- Commissioner of Income Tax ) dt 17.02.2020 IN HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2020 CORAM HON'BLE DR.JUSTICE VINEET KOTHARI AND HON'BLE MR.JUSTICE R.SURESH KUMAR Tax Case (Appeal) No.176 of 2010 P.K.Ganeshwar No.21, Pollachi Road Palladam 641 664. Appellant Vs. Commissioner of Income Tax Central Circle-II, Coimbatore. Respondent Tax Case filed under Section 260A of Income Tax Act against order dated 30.06.2009 passed in ITA No.1845/Mds/2002 by Income Tax Appellate Tribunal 'D' Bench, Chennai. For Appellant : Mr.R.Kumar for M/s.T.N.Seetharaman For Respondent : Mr.T.R.Senthil Kumar Senior Standing Counsel Page 1 of 7 http://www.judis.nic.in Order in T.C.A.No.176 of 2010 (P.K.Ganeshwar -Vs- Commissioner of Income Tax ) dt 17.02.2020 JUDGMENT (Judgment of Court was delivered by DR.VINEET KOTHARI,J.) learned counsel for Assessee submitted that in view of judgment of Honourable Supreme Court in batch of cases including that of present appellant Assessee Mr.P.K.Ganeshwar (C.A.No.10164 of 2010) decided by Honourable Supreme Court on 02.05.2018 since reported in (2018) 404 ITR 526 SC [ CIT -Vs- S.Ajit Kumar, P.K.Ganeshwar and Braj Binani) , upholding addition of Rs.2.56 Crores made in hands of Assessee in Block Assessment, another addition of same amount in Regular Assessment proceedings under Section 143(3) of Income Tax Act, 1961, cannot be sustained. 2. Learned counsel for appellant further submitted that after aforesaid decision of Honourable Supreme Court, Assessing Authority viz., Deputy Commissioner of Income Tax, Circle-2,Tirupur had already passed Appeal Giving Effect Order on 05.11.2018, in which addition of Rs.2.56 Crores has been made in Block Assessment in case of Assessee and net demand payable has been computed at Rs.38,16,510/- . Page 2 of 7 http://www.judis.nic.in Order in T.C.A.No.176 of 2010 (P.K.Ganeshwar -Vs- Commissioner of Income Tax ) dt 17.02.2020 3. Honourable Supreme Court in aforesaid case [CIT -Vs- S.Ajit Kumar, P.K.Ganeshwar (present appellant vide C.A.No.10165 of 2010) and Braj Binani) reported in (2018) 404 ITR 526 SC, has held as under. Held, allowing appeal, that it is cardinal principle of law that in order to add any income in block assessment, evidence of such must be found in course of search under Section 132 of Act or in any proceedings simultaneously conducted in premises of assessee or persons connected with assessee and having transaction or dealings with such assessee. In present case, in response to notice under Section 158BC of Act, assessee filed return admitting cost of investment and disclosing details of transaction between assessee and builder in assessment year 2001-02. However, he had not disclosed payment of Rs.95,16,000 in cash made to builder. method of calculating undisclosed income of block period is provided under Section 158BB of Act. It can be calculated only 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. No departure from this provision is allowed, otherwise it may cause prejudice to assessee. However, Section 158BH of Act, makes all other Page 3 of 7 http://www.judis.nic.in Order in T.C.A.No.176 of 2010 (P.K.Ganeshwar -Vs- Commissioner of Income Tax ) dt 17.02.2020 provisions of Act applicable to assessments made under Chapter XIV-B except otherwise provided under this Chapter. power of survey has been provided under Section 133A of Act. Therefore, any material or evidence found in survey which has been simultaneously made at premises of connected person can be utilised while making block assessment in respect of assessee under Section 158BB read with Section 158BH of Act. This would fall under words and such other materials or information as are available with Assessing Officer and relatable to such evidence occurring in Section 158BB of Act. Assessing Officer was justified in taking adverse material collected or found during survey or any other method while making block assessment. 4. relevant portion of order of learned Tribunal dated 30.06.2009 for Assessment Year 1997-98, which deals with assessment under Section 143(3) of Act, confirming repetitive addition of same amount, is also quoted below for ready reference. 33. In view of facts and circumstances of case, and position in law as discussed in above paragraphs, we are of considered opinion that order of CIT (A), confirming addition of Rs.2.56 Crores, does not call for any interference. His order is, accordingly confirmed. Therefore, 'third issue' raised through ground No.3 is decided against assessee. Page 4 of 7 http://www.judis.nic.in Order in T.C.A.No.176 of 2010 (P.K.Ganeshwar -Vs- Commissioner of Income Tax ) dt 17.02.2020 5. Obviously, same addition on account of alleged undisclosed income cannot be made in hands of Assessee twice over, once in Block Assessment under Section 153BC of Act and second time in Regular Assessment under Section 143(3) of Act, from which proceedings present order of learned Tribunal has arisen. 6. Therefore, in these circumstances, we set aside earlier order passed under Section 143(3) of Act by Assessing Officer, Commissioner of Income Tax (Appeals) and learned Tribunal. We remand case back to Assessing Officer to pass fresh orders in accordance with order passed by Hon'ble Supreme Court, within period of three months from today. appeal is disposed of accordingly. No costs. (V.K.,J.) (R.S.K.,J.) 17.02.2020 Index :Yes/No Internet : Yes/No KST To 1. Commissioner of Income Tax Central Circle-II, Coimbatore. Page 5 of 7 http://www.judis.nic.in Order in T.C.A.No.176 of 2010 (P.K.Ganeshwar -Vs- Commissioner of Income Tax ) dt 17.02.2020 2. Income Tax Appellate Tribunal 'D' Bench, Chennai Page 6 of 7 http://www.judis.nic.in Order in T.C.A.No.176 of 2010 (P.K.Ganeshwar -Vs- Commissioner of Income Tax ) dt 17.02.2020 DR.VINEET KOTHARI, J. AND R.SURESH KUMAR, J. KST T.C.A.No.176 of 2010 17.02.2020 Page 7 of 7 http://www.judis.nic.in P. K. Ganeshwar v. Commissioner of Income-tax, Central Circle-II, Coimbatore