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TMI Blog2013 (12) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 8-8-2012 - Hon'ble Sunil Ambwani And Hon'ble Aditya Nath Mittal,JJ. For the Petitioner : Krishna Agrawal, S. D. Singh For the Respondent : C. S. C.,D. Awasthi ORDER 1. We have heard Shri S.D. Singh, learned counsel appearing for the appellant-assessee. Shri Dhananjai Awasthi appears for the revenue. 2. In this reference by the Tribunal under Section 256 (1) of the Income Tax Act, 1961, the following question of law has been raised for consideration of the Court:- "Whether on the facts and in the circumstances of the case, the Tribunal was justified in upholding the order of Commissioner of Income-tax (Appeals), confirming the penalty of Rs. 1, 28, 000/- levied by the Assessing Officer u/s 271 (1) (c) of the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.12.1983. Her share in the said firm was 45%. On 17.12.1983 when the firm was dissolved, she got the factory. Thereafter she entered into partnership with new partners. In the new firm, Smt. Kamla Devi was given 40 per cent share, whereas in the old firm, she had 45 per cent share. Therefore, for the un-official surrender of 5 per cent share there was oral agreement by which an amount of goodwill of rs. 1, 72, 748/- was given from the other partners. It was submitted that no money was paid to her. Entry was made just to have remembrance because the connected amount was related out of the books. This amount was added in the assessment. No appeal was preferred against that order. In the scrutiny of the accounts, the transactions did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. On the basis of aforesaid facts, additions were made in the account. The assessee did not prefer appeal against those additions. It was contended before us that penalty proceedings are separate from the assessment. Therefore, penalty cannot be sustained on the basis of additions made in the assessment. It was found that though the assessee could furnish material and on the sufficiency of reasoning could be exonerated from the rigour of penalty, in the instant case nothing was produced to support the argument that there is no concealment. There was no documentary proof as to the payment of goodwill. If it was goodwill what was the basis for its calculation is also not shown. Dehors evidence, the Tribunal found it difficult to bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) the Madhya Pradesh High Court held that the initial burden lies on the revenue to establish that the assessee had concealed the income or had furnished inaccurate particulars of such income. The burden shifts to the assessee, only if he fails to offer any explanation for the undisclosed income or offers an explanation, which is found to be false by the assessing authority.The proviso to Explanation 1 to Section 271 (1) of the Income-Tax Act, 1961 provides for shifting of this burden again where the explanation offered by the assessee is found to be bonafide. The assessee in this case had filed return, which was accepted and the assessment was completed. The additional income offered to buy peace with the department and to avoid litigati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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