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TMI Blog1978 (5) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... showing the above income in the return filed for this year and hence he levied a penalty of Rs. 12,250 under S.271(1) (c) of the Act. when the matter was taken on appeal, the AAC confirmed the penalty levied by the ITO. 3. Before us, the learned counsel appearing on behalf of the assessee explained that the ITO took up simultaneously the asst. proceedings for the years 1967-68, 1968-69 and 1969-70. It was explained that the assessee had gifted an amount of Rs. 20,000 to his minor younger brother, Sri Kishan Goud on 4th Jan., 1967 for the purchase of a lorry. An entry to this effect was accordingly made in the books of account. According to the assessee, the income arising from this lorry actually belonged to the minor brother of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the lorry income for the asst. yr. 1968-69 at Rs. 10,000. This view was upheld by the AAC and in the course of the proceedings before the Tribunal in a cross objection filed by the assessee, the Tribunal held that the income from the lorry APT 6483 actually belonged to the assessee. Sri Gopala Rao appearing on behalf of the assessee contended that for asst. purposes it may be that there was sufficient evidence to include the income from this lorry in the hands of the assessee. However, penalty proceedings being independent and separate proceedings, it was explained that the Revenue has to establish further that the income actually belonged to the assessee. In this connection, our attention, was specifically drawn to the fact that the lorr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factorily led any evidence regarding the gift of Rs. 20,000 to his younger brother for the purchase of assessee lorry. Besides this, it was explained that the assessee in the course of the examination on oath had deposed that the lorry was sold during the asst. year 1969-70 and the sale proceeds were kept with the assessee's father. However, when the assessee's father was examined, he stated that he had not received any sum out of the sale proceeds of the said lorry. In view of the apparent contradiction in the statements of the assessee and his father, it was submitted that the theory of purchasing a lorry in the name of the younger brother cannot be accepted at the face value. Sri Subramanyam, the learned Departmental representative has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of D.M. Manasvi vs. CIT(1). This was not a case of inference from mere falsity of explanation given by the assessee in the assessment proceedings but a case where there was definite finding that a device had been deliberately created by the assessee for the purpose of concealing his income. Sri Subrahmaniyam's contention was that the assessee had sought to create a device by making a fake gift deed so as to conceal a part of his income. In the circumstances, it was argued that the ratio of the above decision will apply to the facts of this case. 6. As regards the income from property, it was contended that though there was evidence to show that the assessee was getting income from this property only from 1st Feb., 1969, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having declared the income from property in his return. There is no dispute about the fact that the assessee did not derive any income from these godowns during the year of account. It may be that on an interpretation of law that the assessee would be assessable on notional income on property according to the provisions of the Act. However, for the present proceedings, in our view, the assessee could be under a Bona fide belief that do part of the income from the said property would be assessable under the provisions of the Act as no such income was actually received. In the circumstances, we hold that the assessee could not be held to have concealed any part of his income from property for this year. 8. Now, coming to the income from lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the facts in the case referred to are entirely different from the facts in the instant case. Even if the assessee had accepted the addition in the course of assessment proceedings, such acceptance cannot as a matter of fact lead to automatic levy of penalty under s. 271(1)(c) of the Act. Much stress was laid by the Revenue on the fact that the assessee had claimed that the sale proceeds of the lorry should be given due credit to him for working out his actual cash position. Even if the assessee had made such a submission in the course of assessment proceedings, in out-view, this could not be held against the assessee to come to the conclusion that there has been any concealment of income or any default in filing inaccurate particul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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