TMI Blog1994 (4) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... ive whether the question of legality of the assessment could be gone into in penalty proceedings ?" The assessee is a Hindu undivided family. The assessment year is 1971-72. The Assessing Officer passed an assessment order. In appeal by the assessee, the appellate authority reduced certain additions and on the question whether the amount of sales tax penalty paid by the assessee is liable to be deducted from the income, it directed the Assessing Officer to decide afresh after giving an opportunity to the assessee. The appellate authority thereby set aside the assessment order. During reassessment proceedings, the assessee admitted that a sum of Rs. 11,027 relating to the sale of a tempo-van on account of wrong totalling is liable to be ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Pulipati Subbarao and Co. v. AAC [1959] 35 ITR 673 (AP) and Abhai Ram Gopi Nath v. CIT [1971] 79 ITR 339 (All) to contend for the position that there is no restriction on the power of the Assessing Officer in completing the assessment after remand. It is unnecessary for us to express our opinion in regard to the above controversy since we are satisfied that in the instant case the Assessing Officer was justified in adding Rs. 11,027 to the income because the assessee itself informed the Assessing Officer that there is an error in the balancesheet to the extent of the amount mentioned above. Where such a mistake is admitted by the assessee itself, we do not think that there is any fault on the part of the Assessing Officer in taking such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except the explanation given by the assessee, which explanation has been found to be false, it does not follow that the receipt constitutes his taxable income. The court observed (at page 701) : "It must be remembered that the proceedings under section 28 are of a penal nature and the burden is on the Department to prove that a particular amount is a revenue receipt. It would be perfectly legitimate to say that the mere fact that the explanation of the assessee is false does not necessarily give rise to the inference that the disputed amount represents income. It cannot be said that the finding given in the assessment proceedings for determining or computing the tax is conclusive. However, it is good evidence. Before penalty can be impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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