Kerala High Court
Commissioner Of Income Tax vs John Mathew Lr Of Late N.J. Mathew on 20 August, 2004
Equivalent citations: (2004)192CTR(KER)17, [2005]272ITR243(KER)
Author: K.K. Denesan
Bench: K.K. Denesan
JUDGMENT K.K. Denesan, J.
1. The question of law referred is as follows :
"Whether, on the facts and in the circumstances of the case and considering that a search was conducted on the premises of the assessee under Section 132 of the Income Tax Act, is the Tribunal right in law in holding that the assessee is entitled for the benefits under Amnesty circular ?"
2. The assessee filed the return of income for the asst. yr. 1985-86 claiming the benefits of Amnesty circulars. The AO rejected the claim of the assessee on the ground that no full disclosure was made and, therefore, the assessee was not entitled to the benefits under the Amnesty circulars. The Dy. CIT(A) confirmed the order of the AO. The assessee took up the matter in appeal before the Tribunal. The Tribunal held that the assessee was entitled to the benefits under the Amnesty Scheme.
3. The question whether an assessee in whose premises a search was conducted by the Departmental officers will not be entitled to the benefit of the Amnesty Scheme has been considered by this Court and answered in favour of the assessee in CWT v. N.C.J. John (1998) 233 ITR 475 (Ker). In the above decision, this Court held that the Amnesty Scheme was introduced for the benefit of the taxpayers as well as for the benefit of the Revenue and that the Scheme cannot be construed in a narrower fashion as to deprive the assessee of its benefit, simply because he was subjected to search, notwithstanding that there was no detection of any concealment. In this view of the matter our opinion on the question of law, in the abstract, must be in favour of the assessee and against the Revenue. But in this case, though search was made at the business premises as well as the residential premises of the assessee on 23rd Feb., 1984, it is not clear whether any incriminating materials were detected or any concealment was noticed during that search. Hence, before answering the question as to whether 'the assessee is entitled for the benefits under Amnesty circular', a finding on the above factual position is necessary. Under the circumstances, both sides agree that the matter may go back to the Tribunal for entering a finding on the factual issue and for applying the law depending on that finding. We think that the proper course to be followed is as agreed to and suggested by the parties. We therefore, remit the case to the Tribunal to find out whether the search did yield any result in favour of the Revenue and thereafter, to apply the question of law answered in,CWT v. N.C.J. John (supra).