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TMI Blog1995 (2) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... o the managing partner of two other sister firms, sought settlement of the matters relating to income-tax by filing a petition before the Commissioner of Income-tax. In the petition he disclosed the wealth position of the partners and of the firms as on December 31, 1958, and December 31, 1967. Following discussions and correspondence between the parties, the assessee furnished a revised return on December 18, 1968, disclosing income of Rs. 3,07,428.04. Eventually an agreement was entered into on August 27, 1969. The settlement related to tax liabilities of all the three firms and their partners up to the year 1968-69. The assessee agreed for treating Rs. 7,00,000 as its income not disclosed in the returns of the years up to 1968-69 and wan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal should not have set the agreement at naught with a finding of its own on the question of concealment. Also it is contended that the presumption under the Explanation to section 271(1)(c) is available in favour of the Revenue as it stood then that there was concealment of particulars of income by the assessee inasmuch as the returned income was less than 80 per cent. of the assessed income and hence the burden to dislodge the presumption is squarely upon the assessee. In other words, it is contended that as the levy of penalty for the year 1968-69 was based on the admissions in the agreement no other view is possible. Counsel for the assessee contended that there was no concealment of particulars at all by the assessee in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th position of the partners and of the firms in which they are partners as on December 31, 1958, and December 31, 1967, and requested the Commissioner to settle the income-tax liabilities including the pending assessments of all the firms and partners so as to enable the assessee to revive its business. It was thereafter that on August 27, 1969, the agreement was reached. The Tribunal examined the first return and found that it was only on the basis of estimate. In the covering letter itself it was stated that another revised return would be furnished. The Tribunal held that when the assessee himself has stated that it was only a provisional return and that a revised return would be furnished after finalisation of the accounts there canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above decision that even after the addition of the Explanation to section 271(1)(c), conscious concealment is necessary and that the presumption under Explanation to section 271(1)(c) can be displaced by the assessee proving that the failure to return the correct income did not arise from any fraud or gross or wilful neglect and the quantum of proof necessary would be that required in a civil case, namely, preponderance of probabilities. As the Tribunal held that there was no conscious concealment and as that being a finding of fact, this court cannot probe into the matter and come to a different factual finding. The above decision has been followed in CIT v. Shri Pawan Kumar Dalmia [1987] 168 ITR 1 (Ker). As the Tribunal has taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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