TMI Blog2005 (4) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... he month of September, 1992. The assessee filed return declaring total income of Rs. 25,000 on an estimated basis. During the course of search, the assessee has disclosed Rs. 16 lakhs in his statement recorded under s. 132(4) on 24th Sept., 1992. The AO has reproduced the question and answer to the said disclosure in para 8 of his order. The AO issued show-cause notice to the assessee as he has not shown the disclosure amount of Rs. 16 lakhs. In reply to that show-cause notice, the assessee stated that he was not aware about the said disclosure. In fact, under the depression he signed the statement. He did not understand the implications of the same. It has been stated that he (was) strongly denying having earned such income. The AO rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the AO. In my opinion, merely because the appellant under threat has given a declaration of income of Rs. 16 lakhs, even the declaration is neither specific about the period during which the appellant earned income, nor the tangible assets or investments, if any, made by the appellant out of such income in support of the declaration made. While giving the final judgment, it is difficult to ignore certain points: (i) The appellant is a stamp vendor, writing books of account of some persons, and doing supervision work of building of some friends and relatives. (ii) During the search, the books of account, documents, the papers relating to transactions of building construction, labour work, etc. were found from the premises of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Rs. 16 lakhs only in one year, i.e., asst. yr. 1993-94. Considering all the facts and circumstances of the case, it is very difficult to sustain the addition of Rs. 16 lakhs, which is not corroborated by any movable or immovable assets. Hence, I direct the AO to delete the addition of Rs. 16 lakhs." 4. The learned Departmental Representative relied upon the order of AO and submitted that the AO has made the addition on the basis of admission and declaration made by the assessee at the time of search. The learned Departmental Representative submitted that the declaration made at the time of search under s. 132(4) is binding in nature and the assessee had to disclose this amount in the return of income. In support of his contention, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned by the AO in the assessment order have taken place between the financial years, 1984-85 to 1986-87 and not during the year under consideration, i.e., asst. yr. 1993-94. The learned Authorised Representative drew our attention to the copy of affidavit submitted which is at page Nos. 76 to 84 of assessee's paper book. He further submitted that this affidavit is form of additional evidence as relevant to the matter, so same may be admitted. He drew out attention that the search might have wrongly taken place at the residence of the assessee. The learned Authorised Representative filed list of cases which has been placed on record. On the basis of said list of cases, the learned Authorised Representative submitted note on evidentiary v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestment in house property, unaccounted cash, unaccounted investment in furniture and unaccounted in gold ornaments, etc., whereas in the case under consideration no such assets or valuables were supported to the disclosure. It is settled position of the law that authorities under the Act are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or on not being properly instructed, is overassessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected [S.R. Koshti vs. CIT (2005) 193 CTR (Guj) 518]. The ITO is not entitled to make a pure guess and make an assessment without reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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