TMI Blog1976 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... . No statements were filed along with the return. But on 23rd March, 1970, the assessee filed the usual statements as also a statement showing the peak of the credits in the handloom account and in R.L.M.S. Calicut account in its books showing the peak as Rs. 15,957 and Rs. 19,223 respectively. It also filed a letter of even date agreeing that Rs. 35,180, being the aggregate of such peaks, could be added to the income returned. The ITO, by his order dt. 31st march, 1970, completed the assessment determining the total income as Rs. 1,22,450. In doing so, he made an addition of Rs. 44,403 instead of Rs. 35,180, that being the aggregate of the peak credits in the two accounts. He also initiated action for levy of penalty for alleged concealmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. It was contended before us by the assessee s learned counsel that the levy of penalty was not justified. It was urged that though the assessee had filed the return on 17th March, 1970 disclosing income of Rs. 76,113 for the assessment year under consideration, it had by its letter dt. 23rd March, 1970 agreed to the addition of Rs. 35,180 being the aggregate of the peak of the credits appearing in the handloom account and R.L.M.S. Calicut Loan account in the books of the assessee, that in view of this circumstance it could not be said that the assessee had concealed any income and consequently penalty could not be levied. Reliance was placed upon the decision of the Madras High Court in CIT vs. Ramdas Pharmacy reported in 77 ITR 276. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before any probe was commenced to be made by the Department. This is certainly a circumstances which has to be taken note of and in view of the principle laid down in CIT vs. Ramdas Pharmacy, referred to above it cannot be said that the assessee had concealed its income or had furnished inaccurate particulars of its income. 5. Even apart from what has been stated above, the Department has not established the income nature of the aforesaid sum, which has been included in the assessment. The onus of establishing the same is on the Department and the Department cannot be said to have discharged the said onus. We, therefore, hold that penalty is not exigible. We, accordingly, cancel the penalty. 6. In the result, the appeal is allowed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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