TMI Blog1969 (7) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounting year, on 20th July, 1952, the following credits appeared in the cash book of the assessee : Jankibai, mother of Ganpatram ... 10,000 Lakshmi Bai, wife of Ganpatram ... 4,000 Rukmini Bai, widowed daughter-in-law of Ganpatram ... 4,000 Ginni Bai, wife of grandson of Ganpatram ... 2,000 --------- 20,000 ---------- The assessee asserted that this sum of Rs. 20,000 belonged to the four ladies. This contention was rejected all through. A trippa book was produced at a certain stage. It was held to be not genuine. The sum of Rs. 20,000 was accordingly added to the income of the assessee. Thereafter, the Income-tax Officer started a proceeding under section 28(3) of the Income-tax Act, 1922, and imposed a penalty of Rs. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the aforesaid two provisions that the penalty proceeding is altogether a different proceeding and starts after the assessment proceeding is closed. In the penalty proceeding itself the assessee is given a reasonable opportunity of being heard. Sub-section (4) of section 28 enacts that : "No prosecution for an offence against this Act shall be instituted in respect of the same facts on which a penalty has been imposed under this section." This sub-section gives a clear indication that penalties are placed on analogous footing with offences. There is a conflict of authorities as to the nature of these penalty proceeding and as to the party on whom the onus lies, to establish the requirements of section 28(1)(c) of the Act. The vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Evidence Act, there are three expressions, "proved", "disproved" and "not proved". In the assessment proceedings the assessee might have failed to prove his case that the questioned income is not his, but that will not prove the contrary, namely, that it has been established by the department that such income is concealed income. Different conclusions emerge when the onus is placed either on the assessee or on the department. The onus under section 28(1)(c) must be on the department to establish that the income had been concealed. Failure on the part of the assessee to prove his own case does not mean that the department succeeds in establishing its case that there was concealment of income or furnishing inaccurate particulars of such inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court decision to support such a conclusion. In the Calcutta and Madras decisions cited above, the aforesaid Supreme Courts decision has been distinguished and it was rightly observed that it throws no light on the question at issue. Examined in the light of the aforesaid dictum, the Tribunal's view that the assessee concealed his income cannot be supported. In support of this view, reliance was placed merely on the decision in the assessment proceeding. The department made no endeavour to prove that there was any concealment. It is one thing to discard the explanation of the assessee in the assessment proceeding ; it is altogether a different thing to say that concealment has been established. The Tribunal, therefore, wrongly held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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