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TMI Blog1974 (2) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted the following question of law, under section 256(1) of the Income-tax Act, 1961, for the opinion of this court : " Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in cancelling the penalty of Rs. 12,000 levied under section 271(1)(c)/274(2) of the Income-tax Act, 1961. The assessee is an individual and derives income from various sources, inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appeal against the assessment was partly allowed. In the appeal against the penalty the Tribunal held that mere addition of an item of cash credit in the assessee's income does not itself justify the imposition of penalty on the ground of concealment of income and, as such, the penalty order was set aside. The Commissioner is aggrieved and at his instance the Tribunal referred the question of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f if the income returned by him turns out to be less than 80 per cent. of the income assessed minus the addition to the income on account of deductions claimed and disallowed by the Income-tax Officer, provided he proved that the failure to return the correct income was not due to any fraud or gross or wilful neglect on his part. The Inspecting Assistant Commissioner of Income-tax, no doubt, at on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome returned by the assessee. In the absence of such a finding the Explanation cannot be pressed into aid. We in our advisory jurisdiction under section 256(1) of the Income-tax Act cannot record such a finding and in the absence of such a finding the question as to whether the Explanation is applicable or not cannot be answered. In its application under section 256(2) of the Income-tax Act also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s covered by the Explanation to section 271(1)(c). It is clear that the question of applicability of the Explanation was raised and considered by the Tribunal and, as such, the question did arise out of the order of the Tribunal and the High Court considered its applicability. Such is not the case here. We, accordingly, answer the question in the affirmative, in favour of the assessee and agains ..... X X X X Extracts X X X X X X X X Extracts X X X X
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