9911796707
TMI Blog1983 (3) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... ry facts from the statement of the case. In respect of the assessment year 1965-66, the ITO noted certain cash credits and the assessee was called upon to explain the genuineness of these Credits. The assessee gave an explanation in respect of some of these credits and they were accepted. But in respect of three credits in the names of Shri Surendranath Deogharia, Bujjan Kumar Khetan and Ramjatanjee Chaturvedi, the assessee submitted that though they were genuine loans, the parties were not in a position to come forward and depose before the ITO regarding those credits ; it was further stated by the assessee that he was not in a position to give further evidence in support of the genuineness of these credits and he was agreeable to be asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot due to any fraud or gross or wilful neglect on his part, the assessee had given certain explanations before the ITO and at the same time had submitted that it was not possible for him to substantiate any further the genuineness of those credits. The Tribunal considered that, when the explanations were given by the assessee, it was for the Department to bring some cogent material on record to show that the amount in question constituted the concealed income of the assessee. The Tribunal further held that the assessee might surrender a particular amount for various reasons but mere surrender was not enough to justify the imposition of penalty. The Tribunal also referred to the letter which the assessee had written to the ITO and found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o bifurcate the rule of presumption into two and to say that it only affects the first part and not the second. If the assessee while supplying the particulars of his income gives inaccurate particulars as a result of his fraud or gross or wilful neglect then and then only he can be subjected to the imposition of penalty under the second part of cl. (c). Unless such ingredients are found on the finding of a mere difference in the particulars of income and the figure of income assessed, it cannot be said that the assessee furnished inaccurate particulars of such income. When it will amount to furnishing of inaccurate particulars with an element of fraud or gross or wilful neglect on the part of the assessee will depend on the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not due to any fraud or gross or wilful neglect on his part. The assessee has given a plausible explanation before the ITO. Once the assessee has given an explanation which, in my opinion, is plausible, the onus on the assessee is discharged and in the instant case it was for the Department to bring some more cogent material on the record to show that the amount in question constituted the concealed income of the assessee. In my opinion, the onus having shifted back to the Department, the Department has not been able to discharge its onus. For the reasons stated above, I would answer the question under reference in the affirmative, in favour of the assessee and against the Revenue, and hold that, on the facts and in the circumstances of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases in which the Tribunal was oblivious of the Explanation. As a matter of fact, it was very much alive to the legal position and the effect of the Explanation appended to s. 271(1)(c) of the Act. In para. 8 of its judgment it has clearly noticed the change in the law and has observed that the initial onus lay on the assessee by virtue of the Explanation. It is only thereafter that the Tribunal has proceeded to go into the facts and materials on the records to find out that the assessee has been able to discharge the initial onus. Having held that such initial onus had already been discharged by the assessee, the principle in Anwar Ali's case [1970] 76 ITR 696 (SC), came into full play. There is thus, no force in the submission of the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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