Calcutta High Court
Bhagwati Prasad Kedia vs Commissioner Of Income-Tax on 19 February, 2001
Equivalent citations: [2001]248ITR562(CAL)
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
JUDGMENT
Ashim Kumar Banerjee J.
1. This appeal is directed against the judgment of the learned Tribunal dated January 24, 2000.
2. The basic issue raised by the appellant in this appeal is whether the genuineness of the loan in question can be considered under the block assessment, though the loan in question has been duly accounted for in the regular books of account found" during the time of search.
3. The assessee being an individual obtained loan from a limited company under the Companies Act, 1956, who is also an assessee under the said Act, 1961, There had been search and seizure resulting in block assessment of the assessee. During the block assessment, the assessee was called upon to explain the advance taken, the assessee has filed the confirmation letter of loan including its income-tax file numbers of the creditor of the limited company which advanced the loan to the assessee.
4. The authority, however, being not satisfied with such explanation wanted details of the persons from whom the money was taken by the said limited company without reopening the assessment with regard to the said limited company and ultimately held that the said loan was a fictitious one and was to be considered as undisclosed income of the asses-see during the block period under consideration. The order of assessment was challenged before the Tribunal on the ground that since the source of the money had been proved, the assessee should not be made responsible, even if the loan creditor was not able to prove its source.
5. Before the Tribunal the question was also raised to the extent whether the said loan could be treated as undisclosed income under the Chapter XIV-B of the 1961 Act. The Tribunal was of the view that the Assessing Officer had the power under Section 158BA of the 1961 Act to tax the amount and it makes no difference whether the material is found during the course of search or is brought on record subsequently or whether it has a connection with the material available or found in the course of search.
6. Being aggrieved by the order of the Tribunal, this court has been approached by the assessee under Section 260A of the said Act of 1961 and on being approached the following questions have been framed for consideration :
"1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law and had material to hold that the loan of Rs. 50,000, which was genuinely borrowed by the assessee from a private limited company, Trientra Commerce and Trade Pvt. Limited, allegedly represented the undisclosed income of the assessee for the block period as defined in Section 158B(a) of the Income-tax Act, 1961 ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal has any material to justify its finding and conclusion that the assessee has failed to discharge the onus to prove the genuineness of the said loan creditor amounting to Rs. 50,000 by endorsing the view of the Assessing Officer that the loan creditor was used only as shadow company and the money had come from some individual who had no means to advance the money ?
3. Whether, on the facts and in the circumstances of the case, the Tribunal relied on irrelevant materials and ignored relevant evidence in holding that the sum of Rs. 50,000 was the income of the assessee from undisclosed sources for the said block period on the alleged ground of failure of the assessee to prove the source of the source and whether such finding is otherwise unreasonable and/or perverse ?"
7. Two questions now evolve herein which, according to us, are relevant for consideration :
1. Is the Assessing Officer entitled to question the loan which is a subject-matter of a regular assessment, while making block assessment ?
2. Even if the Assessing Officer is entitled to question the said transaction whether it can be decided against the assessee, on the ground that the assessee has failed to prove the creditworthiness of the source of the source.
8. Mr. J. P. Khaitan, learned advocate, appearing for the assessee, in support of the appellant's case, cited four decisions which are as follows ;
(i) Shaw Wallace and Co. Ltd. v. CIT (Asst.) .
(ii) Unreported decision in A. P. 0. T. No. 682 of 1999 dated November 17, 2000 (Deputy CIT v. Shaw Wallace and Co. Ltd.--since ).
(iii) S. Hastimal v. CIT [1963] 49 ITR 273 (Mad).
(iv) CIT v. Daulat Ram Rawatmuil .
9. It is true that there has been some misunderstanding of the relevant provision in view of the divergent views taken by the different High Courts prior to the incorporation of the Explanation under Section 158BA(2). By incorporating the said Explanation, the issue has now become res integra.
10. Mr. M. P. Agarwal, learned advocate, appearing for the Revenue authority, has tried to contend that even by incorporation of the said Explanation, the Assessing Officer is still empowered to question the loan while passing the block assessment irrespective of the fact that the same income is assessable in regular assessment.
11. Statutory interpretation means the process by which the courts seek to ascertain the meaning of the Legislature through the medium of authoritative forms in which it is expressed. Interpretation differs from construction. In view of the former is of finding out the true sense of any form and the other is the drawing of conclusion respecting subjects that lie beyond the direct expression of the text,
12. A statute is a creature of the Legislature. Every statute has its preamble, it has objects and reasons for which it was enacted. To find out the correct meaning of a particular provision of the statute, it is the duty of the court of law to examine not only the words of the said provision but also the background in which such law is enacted. Every statute must be given a logical meaning and harmonious construction. The words used in the statute are not used for nothing. Each and every word has its significance. It is a duty of the judiciary to interpret the same for its implementation as and when they are approached.
13. Here we have been invited to interpret the Explanation inserted by the Finance (No. 2) Act, 1998, incorporated in Section 158BA(2) of the Income-tax Act, 1961 (hereinafter referred to as "the said Act 1961").
14. The said Explanation is quoted below :
"For the removal of doubts, it is hereby declared that-
(a) the assessment made under this Chapter shall be in addition to the regular assessment in respect of each previous year included in the block period ;
(b) the total undisclosed income relating to the block period shall not include the income assessed in any regular assessment as income of such block period ;
(c) the income assessed in this Chapter shall not be included in the regular assessment of any previous year included in the block period."
15. As we have said at the outset that every statute has to be understood not only by the words of the said provision but also the background in which such law is enacted.
16. The subject Explanation to Section 158BA became necessary because of the divergent views of the different High Courts on this issue. Hence, we are in total agreement with Shaw Wallace and Co. Ltd.'s case where the Division Bench has held that the said Explanation is nothing but clarificatory which was necessitated because of the divergent views. In fact the Explanation to Section 158BA has started with these words "for the removal of doubts" so the doubt expressed by different High Courts are removed by incorporating the said Explanation.
17. Now the question comes what does this Explanation mean. Clause (a) of the Explanation makes it clear that the block assessment is in addition to the regular assessment in respect of each previous year included in the block period ; (b) means total undisclosed income relating to the block period cannot be tagged with regular assessment ; (c) states that the income under Chapter XIV-B, i.e., block assessment shall not be included in regular assessment and other than undisclosed income is assessable in regular assessment under Section 143(3) of the Act.
18. On a composite reading of the said three parts of the Explanation it is crystal clear that the Legislature thought it fit to make a distinction between the block assessment and the regular assessment. As has been held by the Division Bench in Shaw Wallace and Co. Ltd.'s case that there are three types of income within the meaning of the said Act of 1961, i.e., incomes which are offered for taxation, incomes which are shown in the return but deductions have been claimed wrongly and undisclosed income. The Assessing Officer while dealing with regular assessment is free to examine the veracity of the return as well as the claims made by the assessee with regard to exemption and/or deduction. Those can be considered under Section 143(3) of the said Act of 1961, whereas the third income being "the undisclosed income" is taxed and by way of block assessment resulting in search and seizure. Such block assessment is made under Section 158BA. The logic behind the two different modes of assessment, according to us, is that concealment of income and claiming deduction or exemption of taxes in respect of a disclosed income cannot be treated at par. The former is an offence which goes to the root of the matter and the other is on the basis of the causes shown by the asses-see where the Assessing Officer is free to accept the justification shown or reject the same. The said two types of cases cannot be treated at par.
19. Hence, we hold that the Assessing Officer was not entitled to question the said loan in block assessment which is a subject-matter of the regular assessment. Hence, the Assessing Officer was wrong in holding that the said sum can be taxed in block assessment although the same featured in the regular books of account. Similarly, the Tribunal also committed error in upholding the decision of the Assessing Officer.
20. As the loan creditor is an assessee under the Act of 1961 in whose assessment the loan advanced had been accepted by the Revenue authority, the Assessing Officer was wrong in holding the assessee liable to pay tax on that loan money taken from that assessee.
21. In the result, we hold that the Assessing Officer was wrong in holding that the said sum of Rs. 50,000 advanced by the loan creditor was an undisclosed income of the assessee and consequently the Tribunal also committed error in upholding the decision of the Assessing Officer.
22. In the result appeal is allowed.
Y.R. Meena J.
23. I agree.