9911796707
TMI Blog1983 (10) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... course of assessment proceedings the ITO found that there was a credit of Rs. 10,000 in the name of Shri Hardeep Singh S/o Shri Asa Singh of Village Chohat on 13th Nov, 1973. The previous year of the assessee ended on 31st Mar, 1974. Since the credit was during the accounting period relevant to the assessment year under appeal, the ITO probed into the matter. In this process he examined the creditor and also questioned the assessee about it. Finally he concluded for the reason given in his impugned assessment order dt. 31st Jan, 1977 (wrongly stated as 31st Dec, 1977 in the attested copy filed) that the credit in the name of Shri Hardeep Singh was income of the assessee as it was not a genuine loan. That was added to the total income which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He had also indicated the sources from which the amount deposited with the assessee had come. The ITO had not any evidence with him to disregard the evidence which the assessee had produced and merely on conjectures and surmises made the addition which was deleted in appeal to the extent of Rs. 2,000 and unfortunately the assessee did not come up in appeal. However, in penalty proceedings, the initial onus that lay upon the assessee under the Explanation to s. 271(1) (c) has been fully discharged and as such it was for the revenue to establish thereafter that the assessee had concealed the particulars of income for which the penalty had been levied. Since it had not been done, the penalty imposed and confirmed was without justification. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) Vishwakarma Industries vs. CIT (1982) 29 CTR (P H) 243 (FB) : (1982) 135 ITR 652 (P H) (FB). 7. After giving careful consideration to the rival submissions and after perusal of the authorities cited I find no case for imposition of penalty on the assessee. It is clear on facts alone that the assessee had clearly discharged the initial onus that lay upon it under the Explanation to s. 271(1)(c) of the Act. The Explanation is clearly attracted in view of the difference between the finally assessed income and the returned income. However, on facts the assessee had shown that the difference did not arise due to any fraud or gross or wilful neglect on his part. In fact, the assessee produced the creditor who was examined by the ITO and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d surmised and conjectured as if the statement was that all crop was sufficient to meet the domestic requirements. Therefore, the facts relating to the sale of agricultural produce to the assessee were not properly appreciated as the sale to M/s Ram Gopal Janki Dass was only considered. 9. The creditor had clearly stated in his statement that he owned 16 acres of land with his three brothers. However, in the impugned order of the AAC he was considered as if his land available with these persons was only 11 acres. Moreover, the point made out by the ITO that the creditor has stated that he had taken loan for household purposes has not been taken to its logical conclusion by pointing out that the loan for household purpose was during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eally irrelevant because none of the authorities had held that it was a case of substantive concealment because only on Explanation to s. 271(1)(c) has been applied. 10. On the other hand, the cases relied upon by the ld. counsel for the assessee are on the point and clearly applicable to the facts of the case. In the case of Imperial Automobiles, the Madras High Court has clearly laid down that when the assessee establishes that the gap between the assessed income and the returned income is not due to any fraud or gross or wilful neglect on his part, he would have established the initial burden laid on him by the Explanation and rebutted the presumption of concealment and then the ball would be in the department's court and the onus wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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