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TMI Blog1971 (11) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... d in holding that no penalty can be levied under section 271(1)(c) of the Income-tax Act, 1961 ? (ii) Whether, on the basis of material on record and in view of specific opportunity given to the assessee to prove the amount as his income, could an inference of concealment of income be drawn or not ? (iii) Whether it was necessary for the department to prove by positive evidence the fact of concealment and no inference in that behalf could be drawn on the basis of assessment order and other facts and circumstances ? " The facts relevant for our purpose may shortly be stated as follows: The assessee is a registered firm carrying on the business of manufacturing and selling bidis. For the assessment year 1960-61, the non-applicant assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposable was above Rs. 1,000, he referred the matter to the Inspecting Assistant Commissioner under section 274(2) of the Act. The Inspecting Assistant Commissioner held against the assessee on both the counts and in consequence levied on it a penalty of Rs. 1,29,340. The assessee appealed to the Tribunal. Two submissions were advanced- (i) that against the order of the Income-tax Officer holding the hundies to be bogus the assessee had gone up in appeal to the Appellate Assistant Commissioner who had set aside the order of the Income-tax Officer on the point; that he had held that the hundies were genuine and that the assessee was entitled to claim a deduction of Rs. 10,118 on account of interest paid on them; and that consequently thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid principle was extended to imposition of a penalty for concealment of income by the Allahabad High Court in Lal Chand Gopal Das v. Commissioner of Income-tax. It was held that there was no essential difference between a tax and a penalty and that the proceedings for the levy of a penalty were not in the nature of criminal proceedings. The aforesaid view of the Allahabad High Court did not find favour in this court, where in agreement with the decision in Commissioner of Income-tax v. Gokuldas Harivallabhdas's case the proceedings for the levy of penalty were always held to be in the nature of criminal proceedings. See Commissioner of Income-tax v. Punjabhai Shah. However, the controversy has now been set at rest by the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment for establishing that the assessee is liable to payment of penalty. As has been rightly observed by Chagla C. J. in Commissioner of Income-tax v. Gokuldas Harivallabhadas the gist of the offence under section 28(1)(c) is that the assessee has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income and, therefore, the department must establish that the receipt of the amount in dispute constitutes income of the assessee. If there is no evidence on the record except the explanation given by the assessee, which explanation has been found to be false, it does not follow that the receipt constitutes his taxable income. Another point is whether a finding given in the assessment proceedings t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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