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TMI Blog1996 (4) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... the onus upon the Department? (2) Whether, on the facts and in the circumstances of the case, the deletion of penalty under section 271(1)(c) of the Act is justified when Explanation to section 271(1)(c) is attracted? " The material facts are as follows : The assessee filed returns showing income of Rs. 9,400 and Rs. 4,500 from truck business for the assessment years 1966-67 and 1967-68, respectively. The Income-tax Officer, in the course of assessment proceedings, found that the assessee had made investment of Rs. 42,100 for purchase of the truck. As to the source of investment, it was the case of the assessee before the Income-tax Officer that Motor and General Finance Limited, New Delhi, had arranged finance and the assessee had m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars. He also observed that no element of mens rea had been found on the part of the assessee, by the Income-tax Officer. On appeal by the Department, the Income-tax Appellate Tribunal while upholding the order of the Appellate Assistant Commissioner observed that there was no material on record from which it could be inferred that the assessee had either concealed his income or committed fraud or gross or wilful neglect in returning the assessed income. Mr. L. N. Rastogi, learned counsel for the Revenue, has assailed the findings of the Appellate Assistant Commissioner as well as the Tribunal. According to counsel, the findings and the order recorded by them are in teeth of the Explanation appended to section 271(1)(c) of the Act as inse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such income for the purposes of clause (c) of this sub-section. " (emphasis added). The Supreme Court in the case of Chuharmal [1988] 172 ITR 250 has taken the view where the returned income is less than eighty per cent. of the assessed income the Explanation becomes applicable and the onus which lies initially on the Revenue to prove concealment of income gets discharged. This court in Nathulal Agarwala and Son's case [1985] 153 ITR 292 [FB] in a detailed judgment after considering various authorities on the point observed that (at page 309) : " the principal logical import of the Explanation is to shift the burden of proof from the Revenue on to the shoulders of the assessee in the class of cases where the returned income was less t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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