TMI Blog2008 (8) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... that learned CIT (Appeals) has erred in deleting the addition of Rs. 59,316 and Rs. 3,80,296 in assessment years 1993-94 and 1994-95. This is the third round of litigation before the ITAT. The brief facts are that the assessee, an individual, had filed an application under Voluntary Disclosure of Income Scheme, 1997 on 30-12-1997 along with an affidavit declaring undisclosed income in the form of cash to the tune of Rs. 10 lakhs for assessment years 1993-94 and 1994-95 respectively. After this disclosure, assessee somehow could not deposit tax in respect of the income declared in the VDIS. Consequently, no benefit of VDIS was admissible to the assessee. Since, assessee failed to pay the tax, the learned Assessing Officer took the declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 10 lakhs each in assessment years 1993-94 and 1994-95 for charging tax. 4. In pursuance of ITAT s Order, learned Assessing Officer directed the assessee to produce the details in respect of his bank account, books of account, etc. According to the Assessing Officer, assessee failed to submit the requisite details and was also unable to demonstrate that he has not earned Rs. 10 lakhs each in these two assessment years. He also failed to prove that no cash is available. It emerges out from the assessment orders that assessee has disclosed his saving bank account to the Assessing Officer but could not produce the details of the account. Learned Assess-ing Officer called for information from the bank and came to know that sum of Rs. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue is aggrieved with this deletion whereas assessee is aggrieved with the confirmation of the addition. 6. Before us, learned counsel for the assessee reiterated his contentions as were raised before the revenue authorities below. He submitted that except VDIS declaration, no other information was collected by the Assessing Officer for arriving at a conclusion that assessee has income of Rs. 10 lakhs in each assessment year. He emphasized that this declaration has no sanctity in the law because the assessee did not pay the tax and he wanted to withdraw the declaration. He has given withdrawal letter to the tax consultant who filed those letters on 3-1-1998. Referring to the ITAT s order dated 30-6-2004, vide which reopening of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Somehow that could not materialize. He could not comply with the declaration. He applied for withdrawal of the declaration. The crucial question before us is the alleged retracted declaration can be considered as a conclusive proof of income chargeable to tax. In the second round of litigation, the ITAT was not satisfied with this evidence and, therefore, set aside the issue to the file of the Assessing Officer with a direction to collect some more evidence for corroboration. The Assessing Officer failed to collect any evidence. In a way, he put the onus upon the assessee to demonstrate that no income was available with the assessee. In our opinion, it is quite difficult to prove the negative. No doubt, the assessee has made an admission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertake. He is a trained person, he can call for information with the help of machinery available to him from the neighbourhood. He could have called for information from the local estate office about the immovable property of the assessee if any owned by him. There are so many ways if effectively used can help the Assessing Officer to ascertain the income of an assessee. But instead of adopting any such step of things, he only concluded that assessee could not disprove the income of Rs. 10 lakhs in each assessment year. In a way, the Assessing Officer has presumed the income on the basis of declaration made by the assessee. In view of the above discussion, we are of the opinion that there is no evidence on record which can suggest that ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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