9911796707
TMI Blog1981 (2) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-68 1,836 1968-69 1,509 1969-70 1,475 1970-71 2,072 1971-72 2,869 1972-73 3,244 1973-74 2,778 1974-75 2,672 1975-76 3,396 That the business of hire of Pans is very petty and there are only about 166 Pans as in 1965-66 accounting year. That my sons Shri Bhagwati Prasad is quite separate from me and is doing cloth business in his individual capacity. Similarly my other two sons are also carrying on business in their individual capacity and have nothing to do with my business. That the activities of my sons are as under: Shri Bhagwati Prasad: He is carrying on cloth business at Fatehpur, Distt. Barabanki. He was married at Sitapur and is separately carrying on business since soon after his marriage in 1967. Shop at Fatehpur stock Rs. 5,000. Shri Sheo Prasad: He is doing pawning business with the help of his mother and is also carrying on his education and has recently passed Intermediate examination and now joined B.A. He was married two years back and is quite separate in business matter at Mithara. Shri Jagdamba Prasad: He is my third son and is carryin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Issue notice of demand for challan, under ss. 271(1)(c), 273C(b) 271(1)(a)." As the assessee did not submit any reply to the aforesaid show cause notice, the ITO inferred that the assessee had nothing to say in the matter and, therefore, he imposed the impugned penalty on the ground that the assessee had concealed the particulars of his income. 4. The assessee challenged the aforesaid order of penalty before the AAC. It was pleaded before her on behalf of the assessee: (1) That the assessee had brought all the facts on record himself and that the difference in the income returned and the income assessed was due to the difference of opinion between the assessee and the Department. (2) That the appellant claimed his sons to be separate, while the ITO held them to be joint. (3) That there was no mention of any notice under s. 271(1)(c) in the assessment order and that, therefore, the initiation of penalty was not valid and the order of penalty was illegal. 5. The AAC was apparently impressed by the above reasoning of the assessee and, therefore, she deleted the penalty by making, inter alia, the following observations: "I find from the copy of the letter dt. 8t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(1)(c) was clearly attracted to the assessee's case inasmuch as the assessed income exceeded the returned income by more than 20 per cent of the returned income and that, therefore, the onus was on the assessee to show that the said difference had not arisen on account of the assessee's gross or wilful neglect or fraud and that inasmuch as the assessee had failed to discharge this onus, the penalty was clearly leviable upon the assessee. 7. On behalf of the assessee, on the other hand it is urged: (1) That the initiation of proceedings was void ab initio in so far as the assessment order did not contain any direction for the issue of the notice under s. 271(1)(c). (2) That there was no concealment insomuch as the assessee had filed his return suo motu and had also explained the reasons in his letter dt. 8th Dec., 1975 for filing the said return. (3) That all the facts bearing on the controversy were, thus, placed squarely by him before the ITO and that simply because the assessee drew the inference from the said facts, which has not met with the approval of the IT authorities, it could not be said that the assessee had concealed any particulars of his income. He gave a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the stand taken by the assessee before the AAC was not to discharge burden upon him rather his plea was that it was for the ITO to summon the sons and to record their statements on the issue which was not done as such no opportunity of being heard was provided to it. We do not agree with the stand of the assessee as he is also raising it before because it was for him to adduce the evidence to prove his stand that his sons are running separate business at least by way of producing his son, as his witness as if any income which he did not. The reasons assigned by the AAC for rejecting the stands of the assessee, in our opinion, are justified." It is clear from the above observations of the Tribunal that they have refused to interfere with the orders of the authorities below because in their opinion the onus of leading the evidence in support of his case by the assessee has not been discharged. It is not the Department's case that the funds for doing the business had, in fact, flowed from the family's chest and that, therefore, the business being done in the names of the sons were, in fact, belonging to the family. The reasoning for holding that the businesses belonged to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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