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TMI Blog1979 (3) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the course of the examination of the books of account of the assessee that there was a cash credit in the name of Shri Satpal Agarwalla on 8th March, 1972 for Rs. 20,000. The ITO required the assessee to produce the creditor for his examination alongwith evidence in support of sources from which he was able to advance this amount to the assessee. The creditor was not produced before the ITO. The assessee filed a petition that this creditor is regularly assessed in Ward-A, Circle-II, Dhanbad. The assessee also filed a copy of the balance sheet of the creditor from the asst. yrs. 1968-69 to 1972-73. The ITO held that the creditor was assessed under small income scheme launched by the Government. He also held that the income and drawings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee also relied on the rulings reported in 76 ITR at page 696 83 ITR at page 369 and 83 ITR at page 627. The ITO held that the assessee's submission was not acceptable. He also held that the cash credit of Rs. 15,000 was sustained by the AAC. He, therefore, held that the assessee had deliberately concealed the particulars of his income and so the assessee is liable to penalty under s. 271 (1) (c) of the said Act. He, therefore, imposed a penalty of Rs. 15,000 against the assessee. 4. The assessee appealed before the AAC. Before the AAC it was submitted that when the creditor is a regular assessee, the question of availability of funds ought to have been examined in his case and so there was no question of any addition under s. 68 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal where it was held that the confirmation of cash credit is sufficient to rebut the presumption under Expln. to s. 271(1) (c) and that on such rebuttal the burden shifts to the Department to establish by cogent and consistent evidence that the cash credit represents concealed income and the Tribunal cancelled the penalty. 7. The AAC considered the argument advanced before him and he held that the onus was on the Department to prove that assessee had concealed the income. He also held that the ITO should have brought some additional material on record before coming to the finding that the assessee had concealed the particulars of income. The AAC relied on various rulings and held that the penalty under s. 271 (1) (c) cannot be levie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, the onus is on the Department to prove that the assessee has concealed the income. It has been held in the case of CIT, Bihar vs. Patna Timber Works(1) by their Lordships of the Patna High Court that if the Expln. to s. 271(1) (c) is not attracted, then the onus to prove all the ingredients which are required to be proved even under the amended law is on the Department, including the burden of proving that the income is that of the assessee. Under the circumstances, we hold that the onus is on the Department to prove that the assessee has concealed the particulars of income. 11. We have already pointed out above that the cash credit of Rs. 15,000 has been added under s. 68 of the said Act which relates to Shri Satpal Agarwalla. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is at pages 10 to 11 of the paper book. Even the Tribunal confirmed the addition of Rs. 15,000 by order dt. 22nd Feb., 1977 in ITA No. 1344 (Pat) of 1975-76. However, the penalty cannot be levied only on the basis of the assessment of Rs. 15,000 in the hands of the assessee. The learned counsel for the assessee has filed copies of the submissions made before the AAC which are at pages 2 to 6 of the paper book. 12. It cannot be doubted that the principles laid down in the case of CIT, West Bengal(1) and Another vs. Anwar Ali(2), will be applicable in the case of the assessee as the Expln. to s. 271(1)(c) is not applicable in the case of the assessee. In this ruling their Lordships of the Supreme Court have held that if there is no evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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