TMI Blog2004 (6) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... form of cash vide declarations dt.30th Dec, 1997accompanied by their affidavits. Since both the assessees did not pay the tax as required by the scheme, the AO issued notices under s. 148 to both the assesses by registered post for the years under consideration. In response to the same, the assessees filed returns disclosing nil income for the years under consideration except for asst. yr. 1990-91 for which no return was filed as according to the assessee, no notice under s. 148 was received by him. In the course of assessment proceedings, their statements were recorded in which it was stated by them that tax was not paid as they had withdrawn their declarations. In support of the same, they furnished copies of the letters dt.2nd Jan., 1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoking the provisions of s. 148 and also making use of this relevant information for the purposes of completing the assessment proceedings and determining the taxable income based upon this information which was relevant as well as material. Under the circumstances, the action of the AO in determining the income at Rs. 10 lakhs is upheld." Aggrieved by the same, the assessees are in appeal before the Tribunal. 4. The learned counsel for the assessee has reiterated the stand taken before the CIT(A) and also referred to some decisions for the proposition that if there is no material on record then proceedings under s. 147/148 are void ab initio The entire emphasis of his argument was that existence of declarations could not be assumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of the assessee under the IT Act. Sec. 71 provides that nothing contained in the declaration shall be admissible as evidence against the declarant for the purpose of proceedings relating to imposition of penalty or for the purpose of prosecution under IT Act/WT Act or FERA or Companies Act. Sec. 72 provides that all particulars of declaration shall remain confidential and no Court or any other authority shall be entitled to require any public servant to produce before it such declaration. Sec. 72(2) further provides that no public servant shall disclose any particulars contained in such declaration except to any officer employed in the execution of IT Act/WT Act or to any officer appointed by Comptroller and Auditor General ofIndiaor the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted : there is no scope for the application of any equitable consideration when the statutory provisions of the scheme are stated in such plain language. 7. The above discussion reveals that assessee is liable to face the consequences if tax has not been paid as per the scheme. Sec. 67(2) is by way of disincentive to the declarant who has failed to pay the tax due under the scheme. The words "under this scheme" at the end in s. 67(2) are important. By use of these words, the legislature has provided the deeming provisions for the purpose of this scheme and as it did not intend to give any benefit under the scheme to the defaulter declarant. Such deeming provisions must be construed in the context in which used by the legislature. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1997, which reads as under: "Sec. 72 : Secrecy of Declaration-(1) All particulars contained in a declaration made under sub-s. (1) of s. 64 shall be treated as confidential and, notwithstanding anything contained in any law for the time being in force, no Court or any other authority shall be entitled to require any public servant or the declarant to produce before it any such information or any part thereof or to give any evidence before it, in respect thereof. (2) No public servant shall disclose any particulars contained in any such declaration except to any officer employed in the execution of the IT Act or the WT Act, or to any officer appointed by the Comptroller and Auditor General ofIndiaor the Board to audit the tax receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawal of such declaration. Once, the assessee declares his income which escaped assessment, he cannot withdraw the same. Either he has to comply with the provisions of the scheme or he has to face the consequences. Hence, such submission of the assessee is rejected. 13. Lastly, he has raised a contention by way of additional ground which was admitted that notice under s. 148 pertaining to asst. yr. 1990-91 in the case of Rakesh Gupta was never served upon the assessee. The assessment record was not available on the date when the case was heard. However, it was pleaded that it is a matter of record and can be verified by lower authority. Accordingly, we set aside the order of the CIT(A) for asst. yr. 1990-91 on this issue and restore the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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