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TMI Blog1984 (8) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ile part of the deposits were accepted as genuine, the ITO disbelieved the deposits of Rs. 66,500 totalling Rs. 37,000. As difference between the income returned and assessed income were more than 20 per cent, ITO levied under Expln. to s. 271(1)(c) penalty of Rs. 50,000. 3. The assessee's main ground before CIT(A) was that the ITO had disbelieved his explanation in respect of different deposits and this was not sufficient ground for holding that the assessee had concealed his income. CIT(A) rejected this contention on the ground that this case fall under Expln. to s. 271(1)(c) and, therefore, the onus was on the assessee which he has not discharged. 4. At the hearing before us the ld. Counsel for the assessee urged that though the ITO ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawals remained with him in cash and were available for redeposit subsequently. It is urged that CIT(A) was wrong giving the assessee credit only for withdrawals of Rs. 1,000 during the year under consideration and not for the earlier years. It is urged that the assessee's explanation on this point, therefore, was not proved to be false and the assessee had discharged the onus cast on him. Rs. 3,000 deposited on16th Aug., 1970was claimed to be withdrawn from Linkers Finance & Chit Fund Pvt. Ltd. This explanation was rejected on the ground that the assessee did not file any evidence. The assessee grievance is that as the according books of the said company, were in possession of revenue and the assessee was not given opportunity to insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (1974) 98 ITR 462 (Del) where is was held that No penalty under Expln. to s. 271(1)(c) was leviable where the assessee can raise probabilities in his favour or point out circumstances which can create doubts, the benefit of which can be given to him. 7. Reliance was also placed on CIT vs. Vinay Chand Harilal (1979) 120 ITR 752 (Guj) where the assessee had admitted before the AAC that the amount in question belonged to him. It was held that the said admission does not amount to admission that it was an income of relevant year and, therefore, it was not sufficient for levy of penalty and revenue must established that the amount in question was assessee income of relevant year and under the circumstances, the burden cast by the Expln. to s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessed income and on both the Courts the Allahabad High Court held that assumption of concealment was no rebutted by the assessee as the assessee had not offered any explanation with regard to Rs. 31,500 out of Rs. 41,500 added on account of cash credits and Tribunal had not record any finding that failure of assessee to return correct income was not due to fraud or gross or wilful negligence. 11. The facts in the case before us are distinguishable from the facts in the two cases before the Allahabad High Court. We would respectfully follow the Delhi High Court decision in Narang & Co. and hold that in the circumstances of the case the assessee had discharged the onus and no penalty under s. 271(1)(c) or Explanation thereto was lev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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