TMI Blog1998 (11) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 assessment year 1986-87. In this case also the assessee filed its return of income under the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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 with the assessment of income which is not the subject-matter of appeal provided the same has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 assessee has not disclosed anything or is guilty of non-disclosure. Whether the assessee is found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e referred except in case a question is raised about vitiating such finding on such ground that renders the finding reached by the Tribunal open to interference. Without expressing any opinion even if it be assumed for the sake of argument that a return filed after conduct of survey can give rise to a presumption that the assessee has filed returns after detection, it at best is a rebuttable pre sumption of fact which can be upturned during the course of proceedings. What amount of evidence would be necessary for rebutting the presumption arising out of such survey is a matter in the realm of sufficiency or adequacy of evidence necessary for reaching a conclusion of fact. It does not give rise to a question of law. The Tribunal in each ..... X X X X Extracts X X X X X X X X Extracts X X X X
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