9911796707
TMI Blog1984 (5) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year in question is 1964-65. The statement of case as submitted by the Tribunal speaks out the facts on the record for the assessment year in question. The assessee, as a firm, filed the return of income of Rs. 72,865. The assessment was made on a total income of Rs. 1,34,192. It included disallowance of certain expenses and also an addition of Rs. 40,000 which represented the peak credits of certain hundi loans appearing in the books of the assessee. The ITO observed that the assessee had not produced the parties or adduced any documentary evidence in respect of these hundi loans and, therefore, treated this amount as the assessee's income from undisclosed sources. The order of the ITO has been marked as annexure " A " to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng penalty, it was not clear as to on what material the penalty was imposed. The Tribunal further held that the penalty could not be imposed merely because in the assessment proceeding, the assessee did not come forward to satisfactorily establish the genuineness of the claims. The Tribunal further found that there was no indication of fraud or gross neglect on the part of the assessee and, in that view of the matter, the Tribunal did not consider it to be a fit case for imposition of penalty and cancelled the order of the JAC imposing the penalty. The order of the Appellate Tribunal has been marked as annexure " C " to the statement of case. The learned senior standing counsel, appearing for the Revenue, submitted that, in the instant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held that there was no indication of fraud or gross neglect on the part of the assessee, it was enough for the court to come to a conclusion that the Tribunal was fully conscious of the initial onus being upon the assessee before it could be shifted upon the Revenue and the finding of the Tribunal to the effect that there was no indication of fraud or gross neglect, amounts to discharge of the initial onus by the assessee. I may at once state that the Tribunal has completely misdirected itself on the question of law. The law with regard to the imposition of penalty for deliberate and conscious concealment of income has undergone a substantial change by the insertion of the Explanation to s. 271(1)(c) of the Act. Prior to the Explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7] 106 ITR 452 (Pat), and it is settled that the standard of proof applicable to prove a positive fact and the one which is required to prove a negative fact cannot be the same. A high standard is applied for the proof of a positive fact while the standard of preponderance of probabilities is sufficient to prove a negative fact. The Tribunal, in my opinion, seems to have been oblivious of these well settled principles of law. All that the Tribunal has said is-it is not known as to, on what material, the penalty was imposed by the IAC and that there was no indication of fraud or gross neglect on the part of the assessee. From the findings of the Tribunal, it is obvious that the Tribunal was oblivious of the well-known position in law, as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law in mind while dealing with the matter afresh. I, accordingly, am of the opinion that the question referred to us for our opinion must be answered in the negative, in favour of the Revenue and against the assessee and I hold that, on the facts and in the circumstances of the case, the Tribunal was not correct in law in deleting the penalty imposed on the assessee under s. 271(1)(c) of the Act as it stood amended at the relevant time. The case is, accordingly, sent back to the Tribunal. However, in the circumstances of the case, there will be no order as to costs. SUSHIL KUMAR JHA J.-I agree with my learned brother in the conclusion arrived at by him that the matter be remitted back to the Tribunal for reconsideration of the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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