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TMI Blog1991 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... wine shop (b) Rs. 33,500 Compensation payable to the contractors (c) Rs. 66,865 interest payable on security 2. That the learned CIT(A) has failed to give due weight to the bona fides of the petitioners in showing their accrued liabilities in the profit and loss statement submitted along with their return of income before the learned ITO, Ghaziabad on 29th Aug., 1981 in the normal course and without any fear of any raid or adverse action by the IT Department. 3. That the petitioners' bona fide is proved and established by the fact that out of the expenses claimed by the petitioners, the learned IAC (Asst.) has duly allowed the amount of bonus of Rs. 1,15,000 4. That the learned CIT(A) has failed to understand true and correct fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount. 9,94,812 Add: Transfer to general reserve 50,000 . 10,44,812 Less: Bonus 1,15,000 . 9,29,812 Balance or 9,29,810 The assessee's contention before the IAC was that there was no concealment on his part. The income returned was Rs. 2,02,182, while the profit as per seized books was Rs., 9,94,812, the difference between the two figures being Rs. 7,92,630, explained by the assessee as under: . Rs. "Loss in English wine shop 2,51,086 Compensation payable to the contractors 33,500 Interest payable on security 66,865 Penalties payable to the Excise Department 3,26,179 . 6,77,630 Bonus payable 1,15,000 . 7,92,630" 4. The IAC did not believe the contention of the assessee. He accepted the claim of bonus of Rs. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat case that there may be 101 reasons for admission and it may not dispute certain disallowances but that does not absolve the Revenue from proving mens rea of quasi-criminal offence. In the case relied upon by the learned counsel for the assessee referred to above, search and seizure operations had not been carried on. Secondly, that case pertained to an year before its amendment in 1964. Therefore, we find that the decision of the Hon'ble Supreme Court rested on the facts in that particular case and they are distinguishable from the case before us. On behalf of the Department, the following two cases were quoted : Kedar Nath Sanwal Das vs. CIT (1978)111 ITR 440 (Punj), CIT vs. Nathu Lal Agarwal (1985) 47 CTR (Pat) 258 (FB):(1985)153 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee to return the correct income was due to concealment of the particulars of his income on his part; (iii) That such failure of the assessee was due to furnishing inaccurate particulars of such income. The onus of proof for rebutting the presumptions lies squarely on the assessee. However, the burden can be discharged, as in civil cases by preponderance of evidence. Equally, it may not be inflexibly necessary to lead fresh evidence and it would be permissible in the penalty proceedings for the assessee to show and prove that on the existing material itself, the presumptions raised by the Explanation stand rebutted. Once the Explanation is attracted, the law raised the legal presumption that the assessee was guilty of concea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l & Co. The claim of the appellant was that according to cl. 14 of that partnership deed, the parties could undertake any other business with mutual consent. The claim of the appellant was that the foreign liquor business of which loss was claimed, was taken over by the firm in accordance with cl. 14 of the partnership deed. But no such supplementary deed was produced before the CIT that cl. 14 of that partnership deed was acted upon and that the English Wine shop business was carried on by this firm. The CIT(A) has relevantly pointed out that the partnership deed, which was shown to the CIT(A) was not claimed by the assessee before the IAC. The assessment was made on the assessee as AOP and that assessment is final. The CIT(A), therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) on this point. 8. Similarly, the assessee claimed that a sum of Rs. 33,500 was compensation payable to the contractors. Neither before the IAC nor before the CIT was any evidence led to establish that this liability existed. The concealment of this expenditure was also held to have been established by the CIT. We have no material to disagree with this finding of the CIT(A). 9. The third item in respect of which explanation has been offered was Rs. 66,865 claimed as interest payable on security. This liability also did not exist at the time when the return was filed. The CIT, therefore, concluded that for the purpose of concealment, this item qualifies. We do not differ from the finding of the departmental authorities on this point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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