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TMI Blog2016 (7) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and the said appeal came to be admitted on the following questions of law: "(A) Whether the Appellate Tribunal is right in law and on facts in setting aside the order passed by the Assessing Officer as confirmed by the CIT (A) and thereby deleting the addition of Rs. 75,50,000/-? (B) Whether the Appellate Tribunal has correctly appreciated the facts on record so as to allow benefit of Voluntary Disclosure of Income Scheme (VDIS) to the assessee in respect of an amount of Rs. 75,50,000/-?" 3. Whereas, Tax Appeal No.1467 of 2008 challenges the order passed by the ITAT in IT (SS) A No.73/Ahd/2001 for the block period 03/11/1986 to 20/10/1997 and the said appeal came to be admitted on the following questions of law: "(1) Whether on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Andhra Pradesh High Court in case of Commissioner of IncomeTax v. Shankarlal & ors., [2015] 372 ITR 405 (T & AP). 4.1 Learned Counsel for the revenue has taken this Court through the order made by the A.O., which has been confirmed by the CIT (Appeals) and contended that orders passed by the authorities are just and proper and no interference was required to be made by the tribunal and therefore order passed by the ITAT may be quashed and set aside. 5. On the other hand, learned Advocate Mr.Divetia for the assessee has mainly contended that the issue involved in this matter is squarely covered by the decision in case of Nitin P. Shah alias Modi v. Deputy Commissioner of IncomeTax [2005] 276 ITR 411 (Guj) where this Hon'ble Court has h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... succeeded before the Commissioner of Incometax (Appeals) and the Revenue's appeal on this count was dismissed by the Tribunal. 24. Section 68 of the VDIS reads as under: "68. Voluntarily disclosed income not to be included in the total income.( 1) The amount of the voluntarily disclosed income shall not be included in the total income of the declarant for any assessment year under the Incometax Act, if the following conditions are fulfilled, namely: (i) the declarant credits such amount in the books of account, if any, maintained by him for any source of income or in any other record, and intimates the credit so made to the Assessing Officer; and (ii) the incometax in respect of the voluntarily disclosed income is paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord along with the declaration in duplicate. The purpose behind the scheme providing for making of entries in the books of account or any other record is to ensure that the same declared income (asset) is not relied upon to explain away some other income (asset) by an assessee in subsequent proceedings. There is one more reason. Under section 73 of the VDIS, a declarant is not required to pay wealthtax where the voluntarily disclosed income is represented by cash, bullion, other assets specified in section 73(1) of the Scheme but such immunity from payment of wealthtax is for the assessment years for which declaration is made. Meaning thereby, the declarant is required to show that the corresponding wealth, relatable to such income/asset d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner is superior authority in so far as the Assessing Officer is concerned, is not in dispute and could not be disputed by learned counsel for the Revenue. Once that is the position, the following observations made by the apex court in the case of Gestetner Duplicators P. Ltd. Vs. CIT [1979] 117 ITR 1, would apply. In a case where a private company employed salesmen with a fixed monthly salary and also commission at fixed percentage of the turnover achieved by the salesmen, the assesseecompany paid employer's contribution to a provident fund maintained by the company after computing the same by considering both as salary. The fund was recognised by the Commissioner. According to the Assessing Officer, the commission so paid did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognition for that year; any other course is bound to result in chaos and uncertainty which has to be avoided." Therefore, it is not open to the Assessing Officer to go behind the certificate issued by the Commissioner and by ignoring the same, assess an income which has already borne tax under the VDIS. 28. The Assessing Officer has assigned one more reason for rejecting the declaration made under the VDIS by the assessee. According to the Assessing Officer the circulars issued by the Central Board of Direct Taxes could not have been issued under section 119 of the Act, and hence, they are violative of the provisions of the Constitution as well as go beyond the powers available to the Board under the Act. A similar contention was speci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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