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TMI Blog1978 (11) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... e under s. 256(2) of the I.T. Act, 1961 (hereinafter to be referred to as " the Act "), on the under-mentioned question of law : " Whether, on the facts and in the circumstances of the case, the order of the Tribunal deleting the penalty imposed upon the assessee was in accordance with law as engrafted in section 271(1)(c) of the Income-tax Act, 1961, and the Explanation appended thereto. " Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of both the assessment years. The IAC got seisin over the penalty matters, penalty to be imposed being above Rs. 1,000. The assessee was heard by him but the explanation offered by the assessee regarding the alleged concealment of income and the particulars thereof were not accepted. Consequently, a penalty at the rate of 20 per cent. of the tax sought to be evaded was levied for each of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof ". In other words, according to the Tribunal, even though the penalties had been imposed by reference to the Expln. to s. 271 (1)(c), it was for the department to prove by cogent evidence that the disparity between the income returned and the income assessed was due to wilful neglect or fraud on the part of the assessee. It is on these facts that the aforesaid question of law has arisen i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when the Expln. to s. 271(1)(c) of the Act is attracted to a case, the onus lies primarily upon the assessee to prove that the disparity between the income returned and the income assessed, the former being less than 80 per cent. of the latter, did not arise from any fraud or any gross or wilful neglect on his part. It is not for the department in such a case to prove that the disparity was in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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