9911796707
TMI Blog1984 (3) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee could not appropriate the said realisation against the balances in debtors accounts for want of details. On the basis of the aforesaid report, the ITO wanted the assessee to prove the nature and source of the aforesaid realisation. The assessee explained the source of the aforesaid deposits by furnishing a list of the names of some parties but in the absence of supporting details, the ITO did not accept the said explanation. Accordingly, the sum in question was added to the assessee s total income. Simultaneously, he initiated penalty proceedings against the assessee in respect of the aforesaid sum after hearing the assessee, he imposed the impugned penalty on the ground that the explanation given by the assessee was not satisfactory. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of the assessee and, secondly, it is the income of the year under consideration. The Department has not discharged the above onus. Except for rejecting the assessee s explanation, there is no positive material on record to show that the aforesaid amount was in the nature of income and that is was the income of the year under consideration. In view of this it is not possible to sustain the penalty imposed by the ITO in the present case. The ld. Departmental Representative had relied on the decision of Patoa Bros. vs. CIT (1981) 23 CTR (Gau) 22 : (1982) 133 ITR 672 (Gau) in support of the penalty order passed by the ITO. We have gone through the facts of the said case and we find that the ratio of the said decision has no application to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s had not been credited to their respective personal accounts. The assessee could not even locate the sources of balance of the amounts of Rs. 4,946.58 P. which were credited by the assessee to sundry debtors (suspense account) alongwith the above noted amount of Rs. 2,062.39. It was submitted by the assessee that a sum of Rs. 127.66 P. and another sum of Rs. 191.83 P. were credited to its bank account with UBI, Kailasahar on 28th March, 1971 and 19th June, 1971 respectively. Similarly, a sum of Rs. 2,027.07 P. were credited to its bank account with UBI, Agartala on 3rd Feb., 1971. It was submitted by the assessee that a sum of Rs. 2,627.07 P. was credited to its bank accounts on 3rd Feb., 1971 was received from the sub-Area Organiser. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of imposition of penalty, absolute fool-proof evidence is not the pre-requisite. Even if the assessee is able to show that the explanation given by him is able to show that the explanation given by him is probable, the onus cast on the assessee in terms of the Explanation to cl. (c) of sub-s. (1) of s. 271 which is of a civil nature, stands discharged. In the present case, it appears to us, that the assessee had been able to show that there was preponderance of probability in favour of his explanation even though evidence in support of it was not forthcoming. We, therefore, hold that the penalty was not imposable on the assessee even if the Explanation referred to above had been invoked by the ITO to impose the penalty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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