1984 (1) TMI 50

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..... of the Income-tax Act ? (2) Whether there is material on record to hold that there was fraud or gross or wilful neglect on the part of the applicant so as to bring him within the purview of the Explanation to section 271(1)(c) ? (3) Whether by the mere non-acceptance of the explanation given by the applicant, it could be held that there was wilful neglect or fraud on the part of the applicant? (4) Whether on the material on record, it could be held that the penal provisions were attracted ? (5) Whether the imposition of penalty was legal ? " The learned counsel for the assessee conceded that all the questions are related and, in fact, the only question that arises is whether, on the facts and in the circumstances of the case, ther .....

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..... ITO further observed that failure of the assessee to return the correct income did arise from fraud or gross or wilful neglect and the assessee would be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income. The AAC confirmed this finding and the quantum of penalty imposed by the ITO. On a further appeal, the Appellate Tribunal maintained the order. It was observed that the assessee had returned income which was less than 80 per cent. of the income ultimately assessed and, therefore, the Explanation to s. 271(1)(c) of the Act was applicable and the ITO specifically invoked the Explanation for levying penalty on the assessee. The assessee had pleaded in the assessment proceedings that th .....

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..... t the assessee was guilty of fraud or gross or wilful neglect in returning the income and it set aside the order imposing penalty on the basis of findings of fact recorded by it on the materials produced on record and, therefore, no question of law arose for reference. Similar is the view taken by other High Courts that no question of law arose out of the Tribunal's order because whether the presumption raised by the Explanation to s. 271(1)(c) had been rebutted or not was essentially a question of fact. [See Addl. CIT v. Thahrayamal Balchand [1980] 124 ITR 111 (Raj), CIT v. Goswami Smt. Chandralata Bahuji [1980] 125 ITR 700 (Raj), CIT v. R. Dalmia [1981] 128 ITR 399 (Delhi), CIT v. Basanta Kumar Agarwalla [1983] 140 ITR 418 (Gauhati) and C .....

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