9911796707
TMI Blog1982 (6) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... it to draw up statement of the case and to refer to this court the following question which is claimed to be a question of law : " Whether, on the facts and in the circumstances of the case, the Tribunal was correct in deleting the penalty of Rs. 28,000 levied in this case under section 271 (1)(c) ? " The Appellate Tribunal dismissed the reference application filed by the Department and while doing so, recorded a finding that in the present case it was only after appraising the entire material on the record that the Tribunal came to the conclusion that the assessee was not liable to pay penalty under s. 271(1)(c) of the Act. It was also held that the above finding was a pure finding of fact and hence no reference lay to this court. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at Rs. 45,000 and added this amount as concealed income from undisclosed sources. He also initiated penalty proceedings under s. 271(1)(c) of the Act. The respondent filed an appeal before the AAC against the aforesaid decision of the ITO who partly accepted the same, holding that the unexplained investment was only to the tune of Rs. 28,000. On a further appeal to the Income-tax Tribunal, the finding of the AAC was upheld to the effect that the addition of Rs. 28,000 as undisclosed income had been correctly made. As regards the penalty proceedings, the Tribunal cancelled the same holding that there was no evidence or material on the record to establish that the value of the said stock added towards the total income represented income w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, not tenable. It is obvious that resort to the Explanation noticed above can be had only in case there is a finding that the total income returned by the assessee is less then 80 per cent. of the total income assessed. No such specific finding is available in the present case. The second contention of the learned counsel is that there was enough material on the record to inculpate the assessee and the same was not duly considered. In this regard, the Tribunal returned a clear finding that " there is no evidence to conclusively establish that the sum of Rs. 28,000 added towards the total income of the assessee represented the assessee's real income which was concealed ". It is apparent that the sufficiency or otherwise of the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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