1998 (11) TMI 6

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....and claimed benefit of amnesty scheme which was then brought into effect by a circular issued by the Central Board of Direct Taxes. The Assessing Officer did not allow the benefit of the amnesty scheme by holding that the filing of return after a survey was conducted was not voluntary and a suo motu filing of a revised return and therefore made regular assessment giving no benefit of the amnesty scheme. On appeal, the Commissioner of Income-tax (Appeals) confirmed the order of the Assessing Officer. The Tribunal, on further appeal, set aside the order by following its decision rendered in the case of Vikas Sales Corporation v. ITO-I.T.A. Nos. 3421 and 3422 of 1990 in which it had held as under "ITA No. 3422/Ahd of 1990 relates to the ass....

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....86. For the reasons stated in the order in ITA No. 3421/Ahd of 1990, this appeal too is allowed. Consequently, the interest charged under section 139(8) and section 217 of the Act will also have to be cancelled." The Revenue has not challenged the result in ITA Nos. 3421 and 3422 of 1990. In the present cases, the Tribunal found that there is no allegation that the disclosure made in the returns was not full and true. There are no allegations that the disclosure made was not in good faith. During the survey operations conducted by the Revenue authorities nothing incriminating was found and detected. On this ground and referring to the circular of the Central Board of Direct Taxes making it clear that the assessee could make good wi....

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....ing heard learned counsel for the parties, we are satisfied that there is no error in the order of the Tribunal refusing to refer the aforesaid question under section 256(1) of the Act. The Revenue's case has been that a return filed after survey of the business premises of an assessee is a return on detection of concealment and cannot be treated as voluntary disclosure of income. The Tribunal has found as a fact that nothing incriminating has been found against the assessee during the course of detection. The question whether a detection has been made as a result of survey is a question of fact. It is obvious that mere conduct of survey or for that matter even search at any premises by itself cannot give any ground to hold that the asse....