2004 (8) TMI 73

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..... s and in the circumstances of the case, when the Explanation to section 271(1)(c) is admittedly attracted, the Tribunal's requirement of positive evidence on concealment is legally correct? 3. Whether, on the facts and in the circumstances of the case, the Tribunal is legally correct in holding that penalty is not leviable? Assessment year 1974-75: 1. Whether, on the facts and in the circumstances of the case, the finding of the Tribunal that the penalty under section 271(1)(c) is not imposable in the absence of a finding of concealment is legally correct? 2. Whether, on the facts and in the circumstances of the case, there was a material before the Tribunal that there was gross and wilful neglect? 3. Whether, on the facts and in the c .....

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..... being aggrieved filed appeals before the Appellate Assistant Commissioner who holding that the respondent had not furnished correct particulars of income and that he had failed to rebut the presumption of concealment available due to the application of the Explanation to section 271(1)(c), confirmed the penalty for the assessment year 1973-74. For the assessment year 1974-75, the Appellate Assistant Commissioner held that there was a wide difference between the income declared and the assessed income and that the respondent had failed to rebut the presumption of concealment. He also held that the respondent had tried to suppress the income from the truck and had made incorrect claim of depreciation even though the truck was sold. However, .....

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..... n to section 271(1)(c) could be rebutted by the assessee on the basis of the negative evidence showing absence of fraud, or gross or wilful neglect. In this sense the facts and circumstances on the record are in favour of the assessee. There was no positive evidence on the basis of which it could be said that the addition of income from the truck sustained in this case was really the income of the assessee. Accordingly, we are of the clear view that in the facts and circumstances of the present case no penalty was imposable on the assessee under section 271(1)(c). The penalty imposed is, therefore, cancelled and the appeal for the assessment year 1973-74 is allowed." In respect of the assessment year 1974-75, the Tribunal has held as follo .....

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