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TMI Blog1982 (12) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... case and in that view cancelling the order of penalty made under section 271(1)(c) of the Income-tax Act, 1961 ? " The facts of this case are as follows : The assessee had filed originally a return on June 28, 1963, declaring an income of Rs. 45,251. The ITO noticed cash credits aggregating to Rs. 35,000 which were claimed to be a loan taken from one Sri Sudhangshu Mandal. The assessee was required to prove the source of the credits and summons under s. 131 of the I.T. Act, 1961, was also issued in this connection. The assessee later requested the ITO to issue summons to another address which was stated to be a new address of the creditor concerned, but still failing to secure the attendance of the creditor to substantiate his contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come from other sources, as the same cannot be proved, with a prayer that no penalty may be levied. It is evident from the foregoing that the surrender by the assessee of the amount of cash credits for taxation in the revised return was because he was unable to prove by satisfactory evidence his claim of the amount being loan taken from the creditor concerned and not because he admitted the amount to be his undisclosed income. In the circumstances 'we hold that mere inclusion of the amount in the revised return by the assessee for his inability to prove his claim, does not amount to his admission of the amount as his income and his having concealed the same. We further hold that the principle of the decision of the Supreme Court in Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion but that return was filed with a condition that this was including the same as income from other sources as the same could not be proved. It appears to us on the order-sheet referred to hereinbefore that the admission, if any, was a conditional admission and could not be relied on for imposing penalty as an unconditional admission. This view was also corroborated by the observations of this court in the case of CIT v. Sarda Rice Oil Mills [1979] 117 ITR 917. We may further note that the findings of the Tribunal in this case had not been challenged either on perversity or on the basis of no evidence. Upon this finding and in the facts and circumstances of this case, the question must be answered in the negative and in favour of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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