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TMI Blog1973 (9) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 271(1)(c) of the Income-tax Act is justified?" For the assessment year 1963-64, the assessee returned an income of Rs.18,861. The assessee's books of account were not accepted and the assessment was completed by the Income-tax Officer on an income of Rs. 78,700 which was ultimately reduced by the Tribunal to Rs. 51,287. The said amount included a sum of Rs. 3,500 which was shown in the assessee's books as cash credit. The assessee could not prove this cash credit and, ultimately, surrendered this amount for being included in its income. After completing the assessment, the Income-tax Officer initiated penalty proceedings against the assessee for concealment of income to the extent of Rs. 3,500 represented by this cash credit wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, reduced the penalty to the minimum which was leviable under the Act. The assessee then filed an application before the Tribunal under section 256(1) of the Act requiring the Tribunal to refer the following two questions to this court: "1. Whether, on the facts and in the circumstances of the case, the penalty order is in contravention of the provisions of sections 274 and 275 of the Income-tax Act, 1961 ? 2. Whether, on the facts and in the circumstances, of the case, the levy of penalty under section 271(1)(c) of the Income-tax Act, 1961 is justified?" The Tribunal declined to refer either of these questions as, in its view, the decision of the Tribunal was based upon an appreciation of facts and no question of law arose out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also has considered the said evidence and has also rejected it. The finding of the Tribunal that the cash credit of Rs. 3,500 was not a genuine cash credit and that it represented the concealed income of the assessee is a finding of fact. The learned counsel for the assessee contends that even if the Tribunal has given a finding that the explanation offered by the assessee in proof of the cash credit was false or unacceptable, such a finding by itself did not justify the levy of penalty and that it was further necessary for the revenue to prove by positive evidence that the unproved cash credit represented the real income of the assessee. In support of this contention, he seeks to rely upon a decision of the Allahabad High Court in Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty proceedings that the disputed amount was a receipt of some other kind and not a revenue receipt and was, therefore, not taxable. " With regard to the burden of proof in such cases, it was observed that : "Under the circumstances, it would amount to laying an impossible burden of proof on the department and making the provisions for imposition of penalty wholly unworkable, if one were to insist that the department should still be called upon to prove by independent evidence that the assessee had concealed its income or that the amounts were not revenue receipts." We are in respectful agreement with the interpretation put by the Division Bench of this court on the rule laid down by the Supreme Court in Anwar Ali's case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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