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TMI Blog1975 (3) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed income of the assessee are as under: (1) a sum of Rs. 86,000 as income of the assessee from undisclosed sources allegedly spent by the assessee in the construction and furnishing of the building at 2-Yashwant Niwas Road,Indore, in the year 1965 1966. 2. LIP claims made by the assessee totalling Rs. 5,354; and 3. the income of the self-occupied property of the assessee which was not offered for income assessment in the return Rs. 10,074. 2. The IAC to whom the penalty proceedings were referred by the ITO after considering the written explanation submitted by the assessee and after hearing the assessee s counsel came to the conclusion that the assessee had concealed the particulars of her income and had furnished inaccurate p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly upon to the Tribunal. Shri Sachdeva submitted that the report of Shri Puranik, Valuer contained contradictory statements as pointed out above and that the assessee could not get the position clarified from Shri Puranik before the IAC in the penalty proceedings as Shri Puranik had since expired. He submitted that under the circumstances no reliance should have been placed by the IAC on the report of Shri Puranik as to the cost of construction incurred by the assessee. He further submitted that the value of the building including the cost of construction of Rs. 20,07,800 as taken by the assessee was less tan the cost of building and the cost of construction as assessed by the other Valuer Shri Uttamchandani by Rs. 100. Shri Sachdeva next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the uninclusion thereof. According to Shri Sachdeva this conduct of the assessee clearly showed that the non-inclusion of this income was unintentional and occurred due to the ignorance on the part of the assessee of her liability to include that income in her return. According to Shri Sachdeva a case of mere omission or omission by oversight or negligence did not attract penalty provisions of s. 271(1)(c). In this connection he relied on a decision of Jammu Kashmir High Court in Bzxi Md. Yusuf vs. CIT as reported in 93 ITR 38. 5. Regarding the last item of Rs. 5,354 the LIP claim of the assessee, the assessee s learned counsel also repeated the explanation of the assessee as taken before the IAC. The assessee s submission in this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in occupation of the property at 2-Yashwant Niwas Road at Indore for four months and another property for 8 months of the assessment year in question and that it was a deliberate act on the part of the assessee in not including this income. In this regard he relied on a decision of the Kerala High Court in CIT vs. Gates Form Rubber Co. 91 ITR 467 (Ker). Regarding the alleged concealed income of Rs. 86,000 on the cost of construction of the building Shri Bhat submitted that the Tribunal having finally held that the assessee was unable to explain the source of her investment in the construction of the house to the extent of Rs. 86,000, on the cost of construction of the building Shri Bhat submitted that the Tribunal having finally held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the quantum matter to show as to what was the cost of construction of the building. In any case there was not an iota of evidence on the record to show that the alleged unexplained investment of Rs. 86,000 represented the Revenue income of the assessee derived in the previous year relevant to the assessment year in question. Thus the case of the assessee squarely fell within the ratio of the decision of the Supreme Court in the case of Anwar Ali, the relevant portion of which authority we quote below: "It must be remembered that the proceedings under s. 28 are of a penalty nature and the burden is on the Department to prove that particular amount is a revenue receipt. It would be perfectly legitimate to say that the mere fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the ITO had detected that the assessee had been in self occupation of the two properties, the income form which was intimated by the assessee in her letter of 9th Sept., 1971. It therefore cannot be said that this information was supplied by the assessee to the ITO after the latter had detected the income in that regard. As such the conduct of the assessee in voluntarily disclosing this income to the ITO by means of her letter which supplemented her return of income goes to show that there was no culpable or deliberate concealment of that income by the assessee in that regard. The case reported at 93 ITR 38 cited by the assessee s counsel may be read with advantage in this connection. The case 91 ITR 467 relied by the learned Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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