9911796707
TMI Blog2002 (9) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... lure to prove those circumstances, the assessee is deemed to have concealed particulars of his income or he is deemed to have furnished inaccurate particulars of income. Once the Explanation is held to be an integral part of the section 271(1)(c), then the burden will shift to the assessee and in that light, the Tribunal will have to consider the facts of this case de novo. - - - - - Dated:- 4-9-2002 - Judge(s) : S. H. KAPADIA., J. P. DEVADHAR. JUDGMENT The judgment of the court was delivered by S.H. KAPADIA J.-The Department has come in appeal under section 260A of the Income-tax Act, 1961 (hereinafter referred to, for the sake of brevity, as "the said Act"), against the judgment and order of the Tribunal dated May 30, 2000, canc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sale consideration to the tune of Rs. 24,457. This is also conceded by the assessee. The assessee did not go in appeal against the findings of the Assessing Officer on suppression of income. After adding the suppressed income, assessment was made on March 31, 1989, at Rs. 4,97,777 for the assessment year 1988-89. A notice under section 274 read with section 271(1)(c) was issued on March 31, 1989. In response, the assessee by its letter dated December 5, 1990, denied that it has suppressed the income. It also denied that it had furnished inaccurate particulars of income. By the said letter, the assessee denied that it had refused to cross-examine Shri K.K. Patel. By the said letter, the assessee sought opportunity to cross-examine Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction, which the assessee claimed on the ground that it had incurred the liability of the said amount to the sub-contractor for extra work done by him. The Tribunal found that the Assessing Officer in the present case had not invoked the Explanation to section 271(1)(c) while initiating the penalty proceedings. That, the Assessing Officer had not invoked the said Explanation even while imposing the penalty, whereas the Commissioner of Income-tax (Appeals) had sustained the penalty mainly by relying upon the Explanation. The Tribunal further held that the Commissioner of Income-tax (Appeals) was wrong in sustaining the penalty because no show causes notice was given by the Assessing Officer invoking the Explanation as laid down by the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proves that the failure to return the correct income did not arise from any fraud or neglect on his part. The Supreme Court further held that if the assessee fails to prove the circumstances stated in the Explanation then he shall be deemed to have concealed the particulars of his income, and, consequently, he will be liable to penalty. That, no express invocation of the Explanation was required. This judgment was not before the Tribunal. The Tribunal decided the matter on the basis of the earlier judgment of the Bombay High Court in the case of CIT v. P.M. Shah [1993] 203 ITR 792. The Tribunal has proceeded on the basis that the Explanation was inapplicable. Findings: In the circumstances, we are of the view that the matter needs to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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