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TMI Blog2000 (11) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... he customs authorities. On being asked about the nature and source of the aforesaid sum, he explained it as follows: (i) Loan from Shri Babu Ram on 6-3-1966. Rs. 15,000 (ii) Loan from Jain Bullion Company, Meerut, against ornaments pledged by the assessee on 10-3-1966. Rs. 10,000 (iii) Sale proceeds of silver coins sold to Madan Lal Vinod Kumar Jain, Delhi, on 8-3-1966. Rs. 23,374 The Income-tax Officer, during the assessment proceedings, did not accept the evidence produced by the assessee in respect of the loans as mentioned at serial Nos. (i) and (ii) above and also in relation to the claim regarding sale of silver coins. He added the entire sum of Rs. 48,500 as income from undisclosed sources. An appeal was preferred by the assessee before the Appellate Assistant Commissioner (in short, "the AAC") against the assessment and the said authority confirmed the addition. On further appeal, the Tribunal directed deletion of Rs. 23,374 on the ground that the evidence, both documentary and oral, produced by the assessee in respect of the sale of silver coins for Rs. 23,374 was satisfactory. It, however, did not accept the explanation in respect of the alleged loans and fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. The primary stand of learned counsel for the Revenue is that the effect of the Explanation added to section 271(1)(c) of the Act has been lost sight of by the Tribunal. After addition of the Explanation, the position of law which emerged from the decision of the apex court in CIT v. Anwar Ali [1970] 76 ITR 696 was no longer applicable. It is pointed out that the returned income was Rs. 5,000. Even after deletion of the addition made by the Income-tax Officer to the extent of Rs. 23,374, the Explanation was clearly applicable as the assessed income was far above the permissible limit. At this juncture, it is necessary to refer to the legislative history so far as section 271(1)(c) is concerned. There are three stages of amendment of section 271(1)(c). The periods are: (a) prior to April 1, 1964, (b) April 1, 1964, to March 31, 1976, and (c) after April 1, 1976, which have relevance to the present dispute. Originally, the word "deliberately" existed which was omitted by the Finance Act, 1964, with effect from April 1, 1964. An Explanation was inserted at the end of sub-section (1) of section 271, by the said Finance Act (section 40 of the Finance Act, 1964). In between, by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of". The meaning of the word, "concealment" as fraud in Shorter Oxford English Dictionary is: "In law, the intentional suppression of truth or fact known, to the injury or prejudice of another". There may be cases where the facts may attract both the offences, and in some cases there may be overlapping of the two offences. If, in the facts and circumstances of a particular case and on the materials before it, the Tribunal reaches a conclusion that concealment was not proved, it is a question of fact and no question of law arises from such order. Similarly, whether the burden in a given case has been discharged on a set of facts or not is a question of fact. Where a finding of fact arrived at by the Tribunal is based on no material or is perverse or is based on irrelevant, extraneous or inadmissible considerations or is arrived at by the application of wrong principles of law, a question of law arises. Where the Tribunal fails to arrive at its own conclusion of fact after due and proper consideration of the entire materials for and against the assessee and cancels the penalty, a question of law arises. Similar is the case where conclusions of the Tribunal suffer from infirmity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inaccurate particulars thereof is available to be drawn. The principal logical import of the Explanation is to shift the burden of proof from the Revenue on to the assessee. Rebuttal must be on materials relevant and cogent. It is for the fact-finding body to judge the relevancy and sufficiency of the materials. If such a fact-finding body, bearing the aforesaid principles in mind, comes to the conclusion that the assessee has discharged the onus, it becomes a conclusion of fact, and no question of law arises. As observed earlier, the initial burden is on the assessee. Once the initial burden is discharged, the assessee would be out of mischief unless further evidence is adduced. It is plain on principle that it is not the law that the moment any fantastic or unacceptable explanation is offered, the burden placed would be discharged and the presumption rebutted. As pointed out by the apex court in the case of CIT v. Mussadilal Ram Bharose [1987] 165 ITR 14, the burden placed upon the assessee is not discharged by any fantastic explanation. It must be an explanation acceptable to the fact-finding body. These aspects were highlighted by one of us (Arijit Pasayat, Chief Justice) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law applicable in a situation of this type to the facts of this case and, therefore, the decision is not sustainable.' It is thus clear that the question referred to the High Court in this case is no longer res integra. The decisions of this court aforesaid clearly point out the change that has been brought about by the introduction of the said Explanation." Ultimately, it was observed that the principle initiated in Anwar Ali's case [1970] 76 ITR 696 (SC) that mere rejection of the case is not sufficient for levying penalty and Revenue must go further and establish that there has been concealment of particulars of income or a deliberate failure to furnish accurate particulars is no longer necessary. The cases to which the said Explanation is attracted have to be decided in the light of the law enunciated in Mussadilal Ram Bharose's case [1987] 165 ITR 14 (SC) and K. R. Sadayappan's case [1990] 185 ITR 49 (SC). Undisputedly, in the case at hand, the Tribunal has proceeded to place the onus on the Revenue to prove by some positive material or positive circumstance to suggest that the assessee had concealed his income. That was not necessary to be done by the Revenue in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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