(a) Income Tax Ordinance (XXXI of 1979)---

----Ss. 13, first proviso, 65 & Second Sched., Part IV, Cl. (7)---Finance Ordinance (XXV of 1980)---Finance Act (VI of 1987)---Finance Ordinance (XXI of 2000)---C.B.R. Circular No.7(29) S. Asstt/96, dated 7-1-2002---Unexplained investment etc., deemed to be income-- Additional assessment---Assessment year 1996-97---Issuance of notice under S.65 of the Income Tax Ordinance, 1979 for 18-5-2001 with the permission of Inspecting Additional Commissioner vide Order-sheet entry, dated 17-5-2000---Assessee contended that first proviso to sub section (1) of S.13 of the Income Tax Ordinance, 1979 was kept in abeyance vide Cl. (7) in Part IV of the 2nd Sched. and it was omitted by Finance Ordinance, 2000 thus, the same could not be applied earlier---Validity---Assessing Officer from 1-7-2000 to 30-6-2001 after which the Income Tax Ordinance, 2001 was promulgated were equipped with proviso to S.13 of the Income Tax Ordinance, 1979---Reopening under S.65 of the Income Tax Ordinance, 1979 having been made earlier to 30-6-2000 and. the addition being on 30th of June, 2001 was fully covered by the proviso of S.13 of the Income Tax Ordinance, 1979 as the law had come into operation during the period 1-7-2000 to 30-6-2001.  

(b) Interpretation of statutes---

---- Law as is obtaining on the date of notice holds precedence on the laws, which come into force subsequently.  

(c) Income Tax Ordinance (XXXI of 1979)---

----Ss. 13 first proviso, 65 & Second Sched., Part IV, Cl. (7)---C.B. R. Circular No. 7(29) S. Asstt/96, dated 7-1-2002---Unexplained investment etc. deemed to be income---Additional assessment---Assessment year 1996-97---Addition---Notice under S.65 of the Income Tax Ordinance, 1979 was issued in the assessment year 2001-2002 while the addition was made in the assessment year 1996-97---Validity---Proviso to S.13 had become operative during the continuation of the proceedings, but legally it was not operative on the day the notice was served upon the assessee-- Even otherwise the language of the said proviso did not leave any room for its addition for the assessment year 1996-97 on the basis of notice issued on 18-5-2000---Proviso was alive with its full force during the proceedings but at the same time this being a charge in fact of a punitive nature, a deemed income, its application could not be extended beyond the language mentioned therein---If an act referred to in Cls. (a) to (e) of S.13(1) of the Income Tax Ordinance, 1979 was discovered after the assessment of income of the income year to .which the said act relates this income shall be included in the total income of the income year relevant to assessment year in which the said recovery was made---Value proposed by the valuer after 10 years to be as correct estimate the discovery of the investment was in the income year which was relevant to assessment year 2001-2002---Addition made under the proviso to S.13 of the Income Tax Ordinance, 1979 was illegal, in circumstances, which was deleted by the Appellate Tribunal.

1993 SCMR 1232; PLD 1997 SC 700 and 2003 PTD (Trib.) 1238 ref

(d) Income Tax Ordinance (XXXI of 1979)---

----S. 13---Unexplained investment etc. deemed to be income --Application of S.13---Scope---Provision deemed income needs strict application and going beyond the intendments of the Legislature is never permitted.

(e) Income Tax Ordinance (XXXI of 1979)---

----Ss. 65 & 13, first proviso---Additional assessment---Limitation---One cannot be allowed to extend his arms beyond the prescribed limitation under S.65 of the Income Tax Ordinance, 1979 by application of first proviso to S.13(1) of the Income Tax Ordinance, 1979.  

(f) Income Tax Ordinance (XXXI of 1979)---

----S. 13, first proviso---Unexplained investment etc., deemed to be income---Limitation---Provision of first proviso to S.13(1) of the Income Tax Ordinance, 1979 is a very stringent legislation---Such law is the settled rules of jurisprudence and against the general spirit and of law---Limitation is provided for penalizing in respect of charge all enactment---No charge can be left for unlimited application- proviso to S.13 has got into operation a charge which is unlimited application and the only exception is that it shall be added assessment year for which the said discovery has been made.

(g) Income Tax Ordinance (XXXI of 1979)---

----S. 13, first proviso---Unexplained investment etc., deemed to be income---Discovery in assessment year2001-2002---Addition in assessment year 1996-97---Validity-- Discovery had been made on the basis of valuer report which was dated 30-5-2001 and thus the said undisclosed amount could be assessed in the relevant assessment year 2001-2002 and not in assessment year 1996-97.

(h) Income Tax Ordinance (XXXI of 1979)---

----S. 13 (1)(a), (b), (c), (d), (e) & first proviso---Unexplained investment etc., deemed to be income--Word "found"---Connotation-- Fulfilment of requirement of S.13(1)(a) to 13(1)(e) of the Income Tax Ordinance, 1979 while taking recourse to first proviso to S.13(l) of the Income Tax Ordinance, 1979---First proviso to S.13 is part and parcel of said section of the Income Tax Ordinance, 1979 and while taking recourse to the same the Assessing Officer will have to comply with the requirements of S.13(1)(a) to 13(1)(e) of the Income Tax Ordinance, 1979 before embarking upon the provision---Provision only says that if the assessment in respect of the year for which undisclosed income has been finalized, the unexplained investment shall be added in the year of detection and does not give any power to ignore the requirements mentioned in S.13(1)(a) to 13(1)(e) of the Income Tax Ordinance, 1979---Key words for. S.13(1)(e) are "and the assessee offers no explanation about the nature and source of such sum"---Such additions except for S.13(1)(a) of the Income Tax Ordinance, 1979 require approval of Inspecting Additional Commissioner---Before charging undisclosed money, investment or expenditure in the year of discovery the earlier requirements provided in S. 13(1)(a) to 13(1)(e) of the Income Tax Ordinance, 1979 must be fulfilled and in the absence of any of the same the proviso to S.13, cannot be invoked.

(i) Income Tax Ordinance (XXXI of 1979)---

----S. 13---Unexplained investment etc., deemed to be income---Word "found"---Connotation---Report of valuer ---Ambiguous and dubious reports could not be said to be covered within the definition of word "found".

(j) Income Tax Ordinance (XXXI of 1979)---

----Ss. 65, 13, first proviso and Second Sched., Part IV, Cl. (7)-- C.B.R. Circular No.7 (29) S. Asstt/96, dated 7-1-2002---Tax Amnesty Scheme, 2000---Unexplained investment etc., deemed to be income-- Additional assessment---Addition---Filing of declaration of undisclosed income under the Tax Amnesty Scheme after issuance of notice under S.65 of the Income Tax Ordinance, 1979---Validity---Payment of additional sum after filing declaration also should not entirely be used against assessee--- Assessee by virtue of undisclosed declaration would come under the cover of contract provided to such taxpayers through legislation---On facts also the assessee needed sympathetic treatment-- Addition made under the proviso to S.13 of the Income Tax Ordinance, 1979 was declared illegal and was deleted by the Appellate Tribunal.  

Mir Ahmed Ali for Appellant (in I.T.A. No. 1383/LB of 2002).

Muhammad Arif, D.R: and Sardar Jamal Ahmed Sukhera for Respondent (in I. T. A. No. 1383/LB of 2002).

Muhammad Asif, DR and Sardar Jamal Ahmad Sukhera, Legal Advisor for Appellant (in I.T.A. No.2153/LB of 2002).

Mir Ahmad Ali for Respondent (in I.T.A. No.2153/LB of 2002).

Date of hearing: 16^th May, 2003.

ORDER

Cross appeal has been filed both by the assessee and the department. The brief facts of the case which are important for subsequent discussion are as follows:--

The declared and assessed income from 1990-91 to 1995-96 is as under:--

For the year under discussion i.e. 1996-97 the return was filed on 30-9-1996, declaring net income at Rs.215,000 under Self- Assessment Scheme alongwith Wealth Tax Return, as provided under section 55. The assessment purportedly has been completed under section 59A vide order, dated 2-6-1999. A Show-cause Notice No.789, dated 29-4-2000 was issued for reopening of proceedings for the year under consideration saying:--

"In reconciliation of wealth statement for 1996-97 submitted at the time of assessment reveals that you have sold H. No.483-D Peoples Colony Faisalabad at Rs. 12,413,800. But now it has been noticed that the said house was gifted by you, to Mrs. Asma Asif w/o Muhammad Asif r/o 259-B Peoples Colony, Faisalabad. This gift is supported vide gift-deed, dated 8-4-1996. Now on the basis of new fact of filing of inaccurate particulars/concealment of income, I intend to reopen your case under section 65 for additional assessment for which you are hereby given show-cause to explain your position by 6-5-2000".

Again a notice was issued under section 65 for 18-5-2001 with permission of learned IAC vide order-sheet entry; dated 17-5-2000. Simultaneously with issuance of notice, dated 18-5-2000 under section 65, it was intimated that Mr. Muhammad Zahid Akbar, Engineer, had been appointed as valuer by learned RCIT vide Order No. Admn/ A-19/7012, dated 17-5-2001 to determine fair market value of H.No.P-483/D Peoples Colony No. 1 vide No. 2000-2001/DCIT-05/Fad/1222, dated 18-5-2001. The valuer submitted his report to Assessing Officer on 6-6-2001. Upon submission of report the learned Assessing Officer issued Notice No.0530342, dated 15-6-2001 for addition under section 13(1)(b) of the Ordinance for the reasons recorded in said notice. Compliance of said show-cause notice alongwith submissions to transfer of case was submitted before the learned Assessing Officer and explained illegality of proceedings as well as retroactive application of provision. At this stage learned Assessing Officer changed his stance and issued Notice No.869, dated 25-02-2002 on a different view ultimately the assessment was finalized as follows:--

Appeal was filed before the learned CIT(A-II), Faisalabad. The learned Assessing Officer was directed vide Letter No.97, dated 12-12-2001 to submit report and para-wise comments upon grounds of appeal as well as to explain his point of view. The reply was statedly not intimated to the appellant. The learned CIT(A-II) vide A.O. No.7, dated 1-2-2000 decided the appeal with observations at page No.9 by saying that:--

"After hearing the arguments of the A.R. as well as the facts of the case it is held that the declaration filed under TAS 2000 does not indemnify or provides protection to the assessee for unexplained investment made in the reconstruction of house other than the amount gifted to relatives from undisclosed sources."

Hence this appeal.

Before us the A.R. argued the case by informing that the house was purchased by the father of the appellant at Rs.80,000 in the year 1956 and this assessee became owner by way of inheritance. Since this house was in a depilated condition it was renovated and total expenditure incurred were Rs.506,200. The same was declared in the wealth statement filed for 1991-92 excluding original cost at Rs.80,000. During assessment proceedings for 1991-1992 a Notice No. 148, dated 7-10-1992 was issued to confront said investment which was fully explained, assessment was finalized vide order, dated 14-5-1994 under section 62 and no adverse inference was drawn on this score.

Subsequently the said house was disposed, off for Rs.13,000,000 on 9-4-1996 which is relevant to the assessment year 1996-97. The assets were explained and reconciled in the following manner:--

He said that the show-cause notice, dated 29-4-2000 was issued without prior approval of IAC which as per finding/decision of Honourable Federal Tax Ombudsman and circulated by C.B.R. vide Letter No.7(29) S. Asstt/96; dated 7-1-2002 is deviation of the instructions contained in section 65 hence illegal on the face of it. That Inspector's report, dated 8-12-1995 was available at the time of finalizing assessment under section 62 on 30-6-1996 for year 1993-94, which was reopened under section 65. on account, of concealment of expenditure incurred against said Mobil Telephone and accordingly decided under sections 62/132/65, dated 30-11-1996. This evidence, therefore, cannot be used again. He also argued that there was no definite information available with the learned Assessing Officer to reopen assessment for the year 1996-97 under section 65 and to invoke provision of section 13(1)(b) for the reason that the matter had already been discussed by his predecessor during the assessment year 1991-92. Regarding charge of deemed income in the year it is found, he remarked, th4t the first proviso to sub section (1) of section 13 was kept in abeyance vide clause (7) in Part IV of the 2nd Schedule and it was omitted by Finance Ordinance, 2000: As such, the same cannot be applied earlier. Further the simultaneously issuance of notice under section 65 and intimation of appointment of valuer itself proves that there was no definite information with the Assessing Officer to invoke provision of section 13 in the instant case. In support of the contentions that case cannot be reopened without definite information the AR has placed reliance on decision reported as 1993 SCMR 1232 which after relying upon the famous judgment of Supreme Court of Pakistan holds:--

"In the case of Messrs Central Insurance Co. And others v. Central Board of Revenue, Islamabad and others (1993 SCMR 1232), it has bean specifically laid down by the Supreme Court that once an assessee disclosed all the material facts without concealment and the assessment has been consciously completed by the Income Tax Officer, in such a case in the absence of discovery .of any new facts, which can be treated as "definite information", there could be any scope for reopening of the assessment under section 65 on the grounds referred to in section 65(1)(a)(b) of the Income Tax Ordinance, 1979. It was further observed that any change of opinion on the basis of the same material by the Income Tax Officer would not warrant pressing into services section 65(1) and .."

further reliance also been placed of the following judgment:--

"PLD (1997) SC 700:--The word `definite information 'is the key 'words for the purpose of justifying action under sub section (1) and the said words have not been defined in the Ordinance, they will carry their literary meanings. Every information cannot be treated as tile basis for reopening of the assessment but the information should be of the nature which qualify as 'definite information' and that the expression definite information could not be given-universal meaning but have to be construed in each case. Where an assessee discloses all material facts without any concealment and the assessment had been consciously completed by the Income Tax Officer, in such case, in the absence of the discovery of any new facts which can be treated as `definite information' there cannot be any scope for reopening of the assessment under section 65. Any change of opinion on the basis of the same materials by the Income Tax Officer will not warrant pressing into service the said provision:"

In 'support of his argument that permission does not mean approval he has referred 2003 PTD (Trib.) 1238. M.A. No.347/LB of 2002 (decided on 16-8-2002) wherein the learned Tribunal has held that:--

"In view of the above facts and the case-law cited at the bar we are constrained to observe that the words "approval" and "permission" have different meaning and their impact is also quite different. Admittedly; Assessing Officer sought permission and the learned IAC allowed permission, hence addition made by the learned Assessing Officer after seeking permission from the IAC is not tenable in eye of law. It is pertinent to mention here that when law requires one thing to be done in a particular manner the same should be done in the same manner or not done at all. Since in this case permission was sought and permission was granted, we have no hesitation in observing that approval in this case has never been sought nor granted and permission is not tenable in the eye of law."

The A.R. urged that in view of foregoing facts, principle of law enunciated by superior Courts and the submissions made at bar, the entire proceedings be declared ab initio illegal, void, without lawful authority and jurisdiction.

The facts of the case transpire very surprising situation of the issue before us. The investment in this case has not been made during the assessment year 1996-97 which factor has been accepted by the ITO itself in the manner that the valuer has reported that there is no reconstruction after demolishing. The building is constructed in a single 'attempt around 10 years back. Furthermore, the gift-deed has been executed on 8th April, 1996 and it is from Mr. Muhammad Afzal S/o. Haji Muhammad Yaqoob to Mst. Asima Asif. It is on Rs.50 Stamp paper and it does not explain as to what was the circumstances of this gift. The donor and the donee do not have any relationship and the only reason mentioned in the deed is that they are close relatives and are having affectionate relations: Neither the relationship has been mentioned nor the base of 'affectionateness is there. A plain receipt saying that the house has been sold out by Sh. Muhammad Afzal measuring 4 Kanals and 10 Marlas to Mst. Asima wife of Mr. Muhammad Asif for Rs.1,30,00,000 has also been enclosed. An agreement to sell, again on non judicial stamp paper of Rs.50 has also been furnished which speaks that Sh. Muhammad Afzal son of Haji Muhammad Yaqoob has sold out his house to Mst. Asima Asif wife of Mr. Muhammad Asif for Rs.1,30,00,000. It also says that the entire money has been handed over and the possession of the property- has been transferred. This paper again has also not been registered with the Registrar. However, all these papers and discussion become irrelevant as neither the Assessing Officer has taken any cognizance of the same nor the same was subject-matter of discussion before the subordinate officers. The entire addition is on the basis of the report of the valuer who says that the constructed area of the property owned by the said assessee was more than what has been declared. It does not disclose as to in what year exactly the same has been constructed. Though, however, he says that the same seems to have been constructed during the year 1992-93. The Assessing Officer has used the said report in totality against the assessee by taking resort to proviso to section 13 that says:--

Provided that, where any act referred to in clauses (a) to (e) is discovered after the assessment of income of the income year to which the said act relates has been made, the income chargeable to tax under this section shall be included in the total income of the income year relevant to the assessment year in, which the said discovery is made.

This proviso was substituted by Finance Act, 1987, for proviso which was earlier inserted by Finance Ordinance, 1980 (Identical to the existing 2nd proviso). This proviso however, was made inapplicable by inclusion of clause (7) in Part IV of the Second Schedule, as per which the provisions of the said proviso were not to apply in respect of ally person. This clause has subsequently been omitted by Finance Ordinance, 2000. The result of this omission is obvious. The Assessing Officers from 1-7-2000 to 30-6-2001 after which the Income Tax Ordinance, 2001 was promulgated were equipped with the proviso to section 13. In the present case the reopening under section 65 having been made earlier to 30-6-2000 and the addition being on 30th of June, 2001 is fully covered by the proviso hence the arguments regarding, inapplicability of the same in principle is not approved as the law had come into operation during the period 1-7-2000 to 30-6-2001. However whether it was, applicable on the facts and circumstances of this case requires further discussion.

The issue with regard to application of section 65, which has been argued to be without definite information is supported by these facts:--

(1) That the additions made by the Assessing Officer were not subject-matter of discussion prior to the notice and the valuer wag appointed after reopening of the assessment.

(2) That on the date of reopening i.e. 30th of June 2000 the proviso of section 13 was not applicable and was revived after 1-7-2001. Obviously on the date of issuance of notice under section 65 which is 18-5-2000 this information was not there.

(3) That the valuer himself mentioned in his report, dated 30-5-2001 that the building was constructed approximately 10 years back which means on and before 30-6-1991.

He also said that the basis of reopening was not conveyed to the assessee.

The averments of the AR compared with facts of the case apparently do not portrait a correct picture of the facts. The Assessing Officer for reopening the assessment have taken cognizance of the following facts:--

Information was however, collected from the Deputy Director, Housing and Physical Planning; Faisalabad which revealed that the said property has been gifted by Mr. Muhammad 'Afzal, the assessee vide gift deed, dated 8-4-1996 to the donee Mst. Asima Asif wife of Mr. Muhammad Asif resident of 259-B Peoples Colony, Faisalabad without any consideration. On the basis of these new facts of filing of inaccurate particulars/concealment of income, the case of the assessee was reopened after affording proper opportunity .of being heard to the assessee and after' obtaining prior approval in writing from the IAC, Companies Range-II, Faisalabad accorded vide his Letter No.IAC-II/99 2000/I&E-11-53/153, dated 18-5-2000. Notice under section 65 was, therefore, issued on 18-5-2000 which was properly served upon the assessee and complied with. The assessee filed return in response to notice under section 65 declaring income as before.

As is apparent from above para., the notice under section 65 issued on 18-5-2000 was on the basis of the information that the assessee has not sold out his property and that the same was gifted to her cousin. The facts with regard thereto has been mentioned by us in the earlier part of this order. However, the relevance of the same is only up to the extent that the assessee has practically accepted this situation. He in turn had filed a return mentioning the same figure, but at the same time filed a declaration of assets under amnesty scheme, 2000. The form of declaration is in respect of assessment year 1996-97 declaring Rs.130,00,000 as income on which Rs.13,00,000 were paid as tax. As a consequence the purpose of reopening stood met with as the department having accepted the same vide order, dated 7-11-2000 the matter should have ended there and then. The Assessing Officer at this stage found himself further equipped with the proviso which was given alive w.e.f 1-7-2000. In principle we agree that if reopening of assessment is legally correct the Assessing' Officer can add other source also. However, whether facts and law so permits shall be discussed incoming part of this order. To us in the back drop of facts dilated upon and the case-law discussed the issues can be framed in the following manner:--

(i) Whether reopening under section 65 was justified or not?

(ii) Whether the department was, justified in making addition for assessment year 1996-97 under proviso of section 13?

(iii) Whether proviso of section 13 which was revived w.e.f. 1-7-2000 can be applied on a case the proceedings of which, were initiated on or before 30-6-2000?

First issue is almost conceded in the sense that the assessee has filed declaration of undisclosed income for Rs.1,30,00,000 after reopening of the assessment. This apparently was to cover the amount distributed by the assessee to his children under the garb of the sale of the house, which was found to have been gifted by the assessee. Under these circumstances arguing at length that the department had not definite information seems more an effort to waste time than being serious about the issue.

The arguments with regard to permission and approval and previous approval from the IAC before issue of show-cause is also of no help. The department has taken care of the legal formalities and the assessee has conceded to the reopening practically. However, one thing which requires further dilation is as to whether the notice under section 65 issued prior to 30th of June can extend jurisdiction so as to add the investment made in 1992-93 and 1993-94 in 1996-97. In this regard the general principle is that the law as is obtaining on the date of notice holds precedence on the laws, which come into force subsequently In the present case it is correct that the proviso became operative during the continuation of the proceedings, but legally speaking it was not operative on the day the notice was served upon the assessee. Even otherwise the language of the proviso does leave any room for its addition for the assessment year 1996-97 on the basis of notice issued on 18-5-2000. We are willing to agree with the department that the proviso -is alive with its full force but at the same time this being a charge in fact of a punitive nature, a deemed income, its application cannot be extended beyond the language mentioned therein. The provision says that if an act referred to in clause (a) to (e) is discovered after the assessment of income of the income year to which the said act relates this income shall be included in the total income of the income year relevant to assessment year in which the said recovery is made (underlining ours). Even if we consider the value proposed by the valuer after 10 years to be as correct estimate the. discovery (underlining for emphasis) of the investment was in the income year which is relevant to assessment year 2001-2002. Thus we say in keeping view the date of report by the valuer which is dated 6-6-2001. This hardly needs any reference that a deemed income provision needs strict application and going beyond the intendments of the Legislature is never permitted. When the law says it shall be included in the total, income of the income year relevant to assessment year in which said recovery is made, it could not have been added for the assessment year 1996-97 which was reopened under section 65 on the basis of some other through definite information.

There is another angle i.e. with reference to the arguments regarding limitation of section 65. It is correct that one can not be allowed to extend his arms beyond the prescribed limitation. under section 65 by application of above provision. The cases in which the limitation has expired on 30-6-2000, whether this proviso can be invoked or not will need a detailed study. Since we have come to a conclusion through the interpretation of the provision of law, in our humble opinion this should be left for some other case. We, therefore, without any hesitation feel that the proviso of section 13 has not been applied in its correct spirit. This is a very stringent legislation and we have no doubt in our mind in commenting that it is against the settled rules of jurisprudence and against the general spirit and rules of law. There is always a limitation provided for penalizing or in respect of charge under all enactments. No charge can be left for unlimited application. This proviso has got into operation a charge which is unlimited in its application. The only exception is that it shall be added in the assessment year for which the said discovery has been made. However, since we are not here to discuss the vires of a provision of law we shall leave this for the higher Courts. In the present case, however; the discovery has been made on the basis of the valuer report which was, dated 30-5-2001, the said undisclosed amount could be assessed in the relevant assessment year 2001-2002 and not in 1996-97 i.e. the year under appeal before us.

Another factor which would require attention in such additions is that the proviso is a part and parcel of section 13 while taking recourse to the same the Assessing Officer will have to comply with the requirements of section 13(1)(a) to 13(1)(e) before embarking upon this provision. The provision only says that if the assessment in respect of the year for which said undisclosed income has been finalized, the said unexplained investment shall be added in the year of detection. It does not give any power to ignore the requirements mentioned in section 13(1)(a) to 13(1)(e). The most important factor therein is the usage of word "found" which is common in section 13(1)(a) to 13(1)(d). For section 13(1)(e) the key words are "and the assessee offers no explanation about the nature and source of such sum ----------." Furthermore, these additions except for 13(1)(a) required approval of the IAC. The upshot of this para., is that before charging undisclosed money investment or expenditure in the year of discovery the earlier requirements provided in section 13(1)(a) to section 13(1)(e) must be fulfilled. In the absence of any of the same the proviso cannot be invoked. In the present case the information given by valuer is vague and uncertain. He himself has used the words:--

"Note: There are no signs that building is reconstructed after the demolishing. The building is constructed in a single attempt around 10 years back".

The language unequivocally says that the valuer is himself not confident that the building was constructed around ten years back. These words in itself are uncertain. Such ambiguous and non-confident reports cannot be said to be covered with the definition of word found". This aspect, therefore, also was not be ignored by the Assessing Officer in this case.

The fact that the assessee has paid an additional sum of Rs.13,00,000 after filing declaration also should not entirely be used against him. By virtue of this undisclosed declaration he has come under the cover of a contract provided to such taxpayers through legislation. So practically on facts also the assessee needs some sympathetic treatment by the department.

We, therefore, hold that in the present cash entire addition made under the proviso of section 13 was illegal and is hereby deleted.

The appeal stands decided accordingly.

C.M.A./939/Tax (Trib.) Appeal accepted accordingly.