K.S. Jhaveri, J. - (1.) By way of this appeal, the department has assailed the judgmentorder of the ITAT whereby the Tribunal has allowed the appeal preferred by the assessee and dismissed the appeal preferred by the department.
(2.) The brief facts of the case are that the assessee/respondent is a publisher of a daily newspaper Rashtradoot and during the search which has taken place on 4/9/1997 for the block period from 1/4/1987 to 4/9/1997 i.e. assessment year 1987-88 to 1996-97 and assessment year 1997-98 upto 4/9/1997, number of documents were seized particulars of seized record are indicated as under:- "i) A bill book of M/s aggarwalCo. showing the bogus purchases of paper for F.Ys.93-94 to 95-96, aggregating to Rs. 1,36,09,438/- ii) One bill book of M/s Shyam Lal Raghunath Prasad showing the bogus purchases of paper for F.Ys. 94-95 and 95-96, aggregating to Rs. 47,00,656/- and iii) Bogus payment vouchers for the purchase of paper aggregating to Rs. 1,24,06,983/- in F.Y.96-97. Through these vouchers, payments were shown to have been made through false demand drafts."
(3.) Counsel for the appellant Mr. Anuroop Singhi has taken us to the provision of the definition of undisclosed income given under section 158B(b) of the Income Tax Act, 1961, which is under Chapter XIV-B, dealing with special procedure for assessment of search cases and also taken us through provisions under section 155BC(1)158BC(b). The Assessing Officer directed the department to assess the undisclosed income. The income was clearly included under section 145 which brought into effect retrospectively by Act of 2002 w.e.f. 1/7/1995 and therefore, this contention with regard to search on 4/9/1997 and amendment will have a retrospective effect on the date of search when the assessment was done and specific contention is that the Tribunal has considered law which was applicable on the date whereas the High Court should consider the law which is prevailing today for which he has strongly relied upon the decision of Supreme Court in the case of Bakhtawar TrustOrs. v. M.D. NarayanOrs. reported in (2003) 5 SCC 298 in para 36, which reads as under:- "36.It is true that under Section 13, the method of framing of the Zonal Regulations is provided under which a maximum height of a building can be provided by the impugned Act. The legislature in its wisdom thought to provide a maximum height of a new building in the statute itself and it is no longer left to the discretion of the authority to provide a maximum height of a new construction by framing the Zonal Regulations under the Act. Now, the outline development plan as prescribed in the Schedule appended to the new Act, cannot even be amended by the procedure prescribed under Chapter III of the Planning Act. The impugned Act substituted the existing Regulations with a statutory Zonal Regulations to the extent it provided maximum height of a new building. Further, this is done with retrospective effect i.e. for the entire period during which the outline development plan remained in force i.e. from 1972 to 1984. It is settled law that where a law is retrospectively amended, the consequences of such retrospective amendment are that all actions have to proceed on the premise that the law, as amended, was always the law in force. In that view of the matter there was neither any need for the legislature to modify the maximum height of a new building in the manner provided in the planning Act nor to amend the provisions of the Planning Act providing for method of framing the Zonal Regulations." ;