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TMI Blog1973 (10) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... in law in deleting the penalty levied under section 273(a) of the Act ?" Bipan Lal Kuthiala as karta of the Hindu undivided family has his income from his property, dividends, etc., as well as from his personal timber business. In addition he has shares in four different firms, including a cinema. It is unnecessary to give the details thereof. Bipan Lal Kuthiala (hereinafter referred to as "the assessee") is a regular assessee and on the basis of the assessment made during the previous year, a notice was issued to him under section 18A(1) of the Indian Income-tax Act, 1922, on 15th May, 1958, directing him to pay a sum of Rs. 65,067 in four equal instalments during the financial year 1958-59 as advance tax. The assessee filed an estimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60, i.e., prior to the enforcement of the Act of 1961, was rejected by the Appellate Assistant Commissioner but was allowed by the Tribunal. However, on a reference to this court it was held that section 273(a) of the Act did apply. When the matter went back, the Tribunal went into the other contentions of the assessee, namely, whether the burden of proving, that the estimate given by the assessee was false to his knowledge, was on the department and, secondly, whether the department had been able to discharge the burden. Both these points were found in favour of the assessee. The application given to the Tribunal for referring the question of law mentioned above for decision by the High Court having been declined, the present petition h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .... " Prior to the decision of the Supreme Court in Commissioner of Incometax v. Anwar Ali, different views were taken as to on whom lies the burden of proving that the income has been concealed or that incorrect particulars have been given. In Anwar Ali's case, while making assessment for the year 1947-48, the Income-tax Officer found certain cash deposits aggregating to Rs. 87,000 as having been made by the assessee in the bank during the accounting year on 21st November, 1946. The explanation of the assessee that he had received certain amounts from his relations and he had deposited them in the joint names of himself and his minor sons was not accepted and the taxing authority came to the conclusion that this amount of Rs. 87,000 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a penalty on the assessee under section 28(1)(c) of the Income-tax Act?" Their Lordships of the Supreme Court observed that the majority of the High Courts had expressed the view that proceedings under section 28(1)(c) were of a penal nature. The Allahabad High Court had taken the view that penalty was merely an additional Income-tax and, therefore, the proceedings were not of a penal nature. At page 700 of the report, the question posed before their Lordships was given as follows : "The first point which falls for determination is whether the imposition of penalty is in the nature of a penal provision." After referring to the decision of the Allahabad High Court in Lal Chand Gopal Dass v. Commissioner of Income-tax and an earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 28, that the disputed amount was the assessee's income, it was observed as follows : "It must be remembered that the proceedings under section 28 are of a penal nature ..... It would be perfectly legitimate to say that the mere fact that the explanation of the assessee is false does not necessarily give rise to the inference that the disputed amount represents income. It cannot be said that the finding given in the assessment proceedings for determining or computing the tax is conclusive. However, it is good evidence. Before penalty can be imposed the entirety of circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case that burden has been discharged. That is hardly a question of law, particularly in view of the clear statement of the Tribunal on this point. In paragraph 17 of the judgment of the Tribunal, this is what is observed : "While on the subject, we would like to discuss the facts and to see whether the Income-tax Officer has discharged the burden which lay upon him. In our opinion, it is doubtful whether the Income-tax Officer was even aware that there was any burden upon him. The two paragraphs quoted above would show that he thought his only burden was to put or to draft his order in terms of the words used in the section ...... discharging of the burden requires : (a) collection of materials, (b) giving the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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