9911796707
TMI Blog1982 (5) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case and in view of s. 68 of the IT Act, 1961, the Tribunal is right in law in holding that the Department has failed to establish that the cash credits amounting to ₹ 17,200 in respect of which no explanation has been offered by the assessee represented the assessee's income? (2) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in cancelling the penalty imposed under s. 271(1)(c) ?" 2. Briefly the facts are that the assessee is a Transport Company. On scrutiny of its accounts, it was revealed that cash credits were entered in various names during the previous year relevant for the asst. yr. 1969-70. The assessee produced some of the creditors and filed affidavits of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITO. On second appeal by the assessee to the Tribunal, it accepted the appeal holdings that the burden was on the Department to establish that the amount received by the assessee constituted its income and that it had concealed the same. It relied upon the decisions of the Supreme Court in CIT & Anr., West Bengal-I vs. Anwar Ali (1970) 76 ITR 696 (SC) and CIT, Madras vs. Khoday Eswarsa and Sons (1972) CTR (SC) 295 : (1972) 83 ITR 369 (SC). Consequently it cancelled the penalty. 5. An application under .s 256(1) of the Act was made by the petitioner before the Tribunal to draw upon the statement of the case and refer to this Court the above noted two questions of law. The Tribunal, dismissed the application vide its order dt. 9th Jan., 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ources. The relevant part of s. 271(1) as it stood then, reads as follows : "271(1) If the ITO or the AAC in the course of any proceedings under this Act, is satisfied that any person - (a).... ...... ......... ......... (b)... ...... ......... .......... (c) has concealed the particulars of his income or furnished inaccurate particulars of such income, He may direct that such person shall pay by way of penalty : (i) ....... ........... ............ (ii) ........ .......... ............. (iii) in the cases referred to in cl. (c) in addition to any tax payable by him, a sum which shall not be less then, but which shall not exceed twice, the amount of the income in respect of which the particulars have been concealed or inaccu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gross or wilful neglect on his part. Now it would follow from above and the factum of the presumption spelled out therein that in essence the Explanation is a rule of evidence. This indeed appears to be well established both on the language and the principle of this Explain as also by a plethora of precedents holding to the same effect. Further, it must at once be pointed out that the presumption raised by the Explanation are not conclusive presumption. These are only rebuttable presumption. As in the rule under the Civil law, the initial burden of discharging the onus of rebuttal is on the assessee. However, once he does so, he would be out of the mischief of the Explanation until and unless the Department is able to establish afresh that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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