TMI Blog2004 (8) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... . JUDGMENT The Income-tax Appellate Tribunal, Allahabad, has referred the following questions of law under section 256(2) of the Income-tax Act, 1961, hereinafter referred to as "the Act"), for opinion to this court: "Assessment year 1973-74: 1. Whether, on the facts and in the circumstances of the case, there was material before the Tribunal to hold that the assessee had discharged its burden to rebut the presumption of concealment? 2. Whether, on the facts and in the circumstances of the case, when the Explanation to section 271(1)(c) is admittedly attracted, the Tribunal's requirement of positive evidence on concealment is legally correct? 3. Whether, on the facts and in the circumstances of the case, the Tribunal is legall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he truck by Rs. 13,000 which was reduced in appeal by Rs. 6,000 and profit under section 10(2) on sale of truck was reduced from Rs. 8,506 to Rs. 7,605. The Income-tax Officer initiated penalty proceedings under section 271(1)(c) of the Act in respect of both the years and holding the incomes to be concealed, he levied penalties of Rs. 10,599 and Rs. 7,000, respectively, with reference to the amounts of Rs. 10,599 and Rs. 6,755, held to be the incomes concealed. The respondent being aggrieved filed appeals before the Appellate Assistant Commissioner who holding that the respondent had not furnished correct particulars of income and that he had failed to rebut the presumption of concealment available due to the application of the Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imple estimate of income in the absence of any books of account. Thus it is a case of an estimate against an estimate. Although it is correct on principle that even in cases of estimate penalty under section 271(1)(c) may be attracted if the facts established concealment of income or furnishing of inaccurate particulars of income. There is no finding of concealment in this case. The presumption of concealment available to the Revenue by virtue of the application of the Explanation to section 271(1)(c) could be rebutted by the assessee on the basis of the negative evidence showing absence of fraud, or gross or wilful neglect. In this sense the facts and circumstances on the record are in favour of the assessee. There was no positive evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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