TMI Blog1979 (7) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the preceding year. He also found that the proviso to s. 145 was applicable as weighing particulars were not maintained and that there was no satisfactory explanation for the fall in the profits. He accordingly applied gross profit at the rate of 8 per cent on estimated turnover of Rs. 1,37,600 and 12 per cent on the manufacture of Rs. 8,32,708 to make an addition of Rs. 42,835. He also noted that the assessee has constructed a house which was stated to have cost Rs. 17,303 and considering this as low it was also taken into account in making the addition. 3. The assessment having been set aside on appeal, the ITO made a fresh assessment on 20th March, 1976. In that order the ITO rejected the accounts of the assessee and after analysi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te vs. CIT 1978 CTR (Mad) 273 : (1978) 114 ITR 586 (Mad) and in the case of Addl. CIT vs. Smt. V. Kanakammal (1979) 118 ITR 94 (Mad). On the other hand the Revenue supported the orders of the authorities below and pointed out that under statement of cost of construction and the poor withdrawals indicated that it was not a case of the mere estimate but a case of concealment of income. Reliance was placed on the decision of the Allahabad High Court in the case of CIT vs. Balaram Ram Kishan 1978 CTR (All) 209 : (1979) 116 ITR 410 (All) and the decision of the Calcutta High Court in the case of CIT vs. W.J. Walker Co. (1979) 117 ITR 690 (Cal). 6. On a careful consideration of the rival submissions we are of the opinion that the imposition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 209 : (1979) 116 ITR 410 (All) all that stated was that penalty only be imposable even in the case of best judgment assessment and in the case of CIT vs. W.J. Walker Co. (1979) 117 ITR 690 (Cal) it was pointed out that the burden cast by the Explanation must be discharged by the assessee before the burden could shift to the Revenue to prove actual concealment. Since on the facts of this case we have found that the burden cast by the Explanation has been discharged by the assessment and that there is no evidence to prove concealment of income it must be held that the penalty imposed under s. 271(1)(c) cannot be sustained. We have therefore no hesitation in cancelling the penalty imposed. 7. In the result the appeal is allowed. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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