TMI Blog1976 (3) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... why penalty be not levied against him for having concealed his income for the year under consideration. According, to the ITO the assessee had not filed any reply to the said show cause notice. From this, he inferred that the assessee had no explanation to offer. He next turnover in to the facts and circumstances of the case and noticed that he (the assessee) had not shown at all the following two items of income : (1) Annuity refundable Rs. 825 (2) Profit earned under s. 41(2) of the Act Rs. 1,885 He also noticed that though the assessee had returned the sales of prescription at Rs. 34,058 the same had been taken at Rs. 36,000 and with the gross profit applied thereto, there was concealmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee to prove that the failure to return the correct income has not arisen from any fraud on any gross or wilful neglect on his part. For discharging the said onus it is now well established that the assessee need not lead any specific evidence. he can on the basis of the material on record urge that the said onus stands discharged. Further, it is also well established that the onus to be discharged by an assessee under the said provision is that of preponderance of probabilities as in a civil case. It is not one of proving the case beyond doubt as in a criminal case. Has this onus been discharged by the assessee in the present case as was urged by Mr. Bansal before us ? 4. As already state the assessee had returned the gross pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the year under consideration cannot make me to deduce the inference as sought to be made out by he Departmental Representative, i.e., namely that the failure to disclose the correct income had arisen from any fraud or any gross or wilful neglect. 5. Coming to the failure of the assessee to return profit under s. 41(2) on the sale of car of Rs. 1,888 it may be mentioned that the plea of the assessee before the AAC was that the said amount was not includible in his total income because, according to him, the said profit was of tentamount to capital gains and being less than Rs. 5,000 was not assessable in the hands of the assessee. In view of the said plea raised by the assessee which has been rejected by the AAC it cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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