TMI Blog2005 (1) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) by the Finance Act, 1964. - In the result, the question referred to this court is answered in favour of the Revenue and against the assessee. - - - - - Dated:- 11-1-2005 - Judge(s) : G. S. SINGHVI., JASBIR SINGH. JUDGMENT The judgment of the court was delivered by G.S. Singhvi J.- The Income-tax Appellate Tribunal, Chandigarh Bench (for short, "the Tribunal"), has, in compliance with the direction given by this court in I.T.C. No. 125 of 1982, referred the following question of law for its opinion: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal has been right in law in confirming the order of the Appellate Assistant Commissioner holding that penalty cannot be levied solely on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the latter refused to call anyone else. Shri Ladha Ram then made the following statement: "I do not recollect whether I gave any cash to M/s. Mange Ram Om Parkash. I have not given or taken any amount in cash." Thereafter, the assessee was given notice to show cause as to why the cash credit introduced in the name of Shri Ladha Ram be not treated as in-genuine. In its reply, the assessee stated as under: "That Shri Ladha Ram stated before the Inspector on his visit to his shop in his will on October 29, 1975, that he had no balance outstanding that day on October 29, 1975, against cash deposits made earlier, besides agricultural produce with the assessee-firm. The creditor is aged 68 years of weak eyesight. The financial position of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was available on the record from which it could be inferred that the assessee had consciously concealed the particulars of income or had deliberately furnished inaccurate particulars in respect of the same. She further held that the finding recorded in the assessment order cannot be relied upon for the purpose of imposing penalty. The appeal filed by the Revenue against the order of the Appellate Assistant Commissioner was dismissed by the Tribunal vide its order dated January 14, 1982, by recording the following observations: "After taking into consideration the rival submissions and perusal of the record especially the statement of Ladha Ram dated May 28, 1974, and those dated October 29, 1975 and November 5, 1975, with his affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty,- ... (iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than 20 per cent, but which shall not exceed one and a half times the amount of the tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income. Explanation.- Where the total income returned by any person is less than 80 per cent, of the total income (hereinafter in this Explanation referred to as the correct income) as assessed under section 143 or section 144 or section 147 (reduced by the expenditure incurred bona fide by him for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the income returned was less than 80 per cent, of the income assessed, the onus to prove that it was not the failure of the assessee that caused the difference shifted to the assessee. But the onus was rebuttable: the presumption of concealment was rebuttable by cogent, reliable and relevant material. Since, however, no such material was indicated either by the Tribunal or by the High Court, the High Court was in error in not correctly applying the principle laid down by the Supreme Court in CIT v. Mussadilal Ram Bharose [1987] 165 ITR 14." In CIT (Addl.) v. Jeevan Lal Sah [1994] 205 ITR 244, the Supreme Court 10 declared that the rule regarding burden of proof enunciated in CIT v. Anwar Ali [1970] 76 ITR 696 (SC) is no longer val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha Ram were, in our considered opinion, sufficient for holding that he had furnished inaccurate particulars of income within the meaning of section 271(1)(c) of the Act. Shri Akshay Bhan, learned counsel for the assessee, relied on the judgments of the Supreme Court in CIT v. Khoday Esivarsa and Sons [1972] 83 ITR 369 and CIT v. Shri Iron Foundry Engineering Works Ltd. [1997] 225 ITR 684 and of the Andhra Pradesh High Court in CIT v. Bharat Umbrella Manufacturing Co. [1987] 167 ITR 683 and submitted that the question referred by the Tribunal cannot be treated as a question of law, but we have not felt impressed. In our considered view, the question of law referred by the Tribunal did arise from the order passed by it in the penalty procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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