TMI Blog2003 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... which are proposed for both the years are as under: Assessment year 1975-76: (i) Whether there was evidence to hold that the assessee concealed the particulars of income, so as to attract penalty under section 271(1)(c) of the Income-tax Act, 1961? (ii) Whether the order of the Tribunal upholding the levy of penalty without a clear finding about the facts and omitting material facts from consideration is vitiated in law? (iii) Whether the Tribunal was right in law in upholding the levy of penalty under section 271(1)(c) for addition of Rs. 15,000 as unexplained investment that is deemed income under section 69A of the Income-tax Act, 1961, and particularly in view of Explanation 1 read with the proviso thereto to section 271(1)(c)? (iv) Whether, on the facts and in the circumstances of the case, that the assessee's husband was having substantial income from grains business up to the time of her death in August, 1974, and the assessee herself had agricultural income of about Rs. 10,000 yearly from 1969, is the finding of the Tribunal unreasonable and perverse that the investment did not come out of the savings from such income, but was unexplained investment, so as to att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was unable to explain the investment made by her and, therefore, the penalty for concealment of income in respect of unexplained income was rightly levied. On an appeal being preferred the Tribunal in paragraph 7 of its order expressed the view as under: "7. As regards the assessment year 1976-77, the Tribunal has given further relief and restricted the addition to the tune of Rs. 30,000 holding that this investment was made from undisclosed sources. The Tribunal has disbelieved the theory of assessees regarding investment made by her in this regard. The assessee has neither produced any additional evidence or additional circumstance in the penalty matter and the explanation given in the quantum matter was also not sufficient to hold that the explanation of the assessee was bona fide or she has discharged the onus, which lay on her under section 271(1)(c). The finding of the Commissioner of Income-tax (Appeals) is based on the sound reasoning that the assessee has concealed the income and thereby is guilty of levy of penalty under section 271(1)(c). The finding of the Commissioner of Income-tax (Appeals) for both the assessment years is, therefore, upheld. The Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, comply with notices, concealment of income, etc. Section 271(1)(c) which is relevant for our purpose reads as under: "271.(1)(c) has concealed the particulars of his income or furnished inaccurate particulars of such income," As Explanation 1 is relevant for the present purpose we think it appropriate to reproduce the same. "Explanation 1.- Where in respect of any facts material to the computation of the total income of any person under this Act,- (A) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Commissioner to be false, or (B) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him, then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed." It is pertinent to state that the aforesaid provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fiction contained in section 69A. There was nothing whatsoever to show that really the assessee had earned any such income during the relevant previous year. There was also nothing to show that the assessee's statement that the gold and gold ornaments belonged to his deceased father and were not connected with his income was in any way false. In this view of the matter, we are of the opinion that the Tribunal was justified in deleting the penalty." In that background after so holding the Division Bench answered the reference, as far as this aspect is concerned, in the following terms: "... assessee had not concealed the particulars of income or furnished inaccurate particulars of such income within the meaning of section 271(1)(c) and was not liable to penalty." The submission of Mr. Shrivastava is that onus is on the Department while taking recourse to Explanation and that is what has been held in the aforesaid judgments. Learned counsel has also commended us to the decision rendered in the case of CIT v. S. P. Jain [1973] 87 ITR 370 (SC). In the aforesaid case the apex court dealt with what is basically the question of jurisdiction of the High Court or the Supreme Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the facts of the said case. Their Lordships referred to the earlier decision rendered in the case of CIT v. Anwar Ali [1970] 76 ITR 696 (SC) and reiterated the principle laid down in the case of CIT v. Khoday Eswarsa and Sons [1972] 83 ITR 369 (SC). What is discernible from the aforesaid case is that the assessee reiterated the explanation which it offered in the assessment proceeding and in that context the Supreme Court had observed what we have indicated earlier. Mr. Shrivastava has heavily relied on the dictum of the aforesaid decision and pyramided his submission on the fact that the explanation which was offered by the assessee during the assessment proceeding should have been taken into consideration and had it been taken into consideration it would have been vividly clear that there had been no concealment of particulars of income in whatsoever manner or the assessee had deliberately furnished inaccurate particulars. Though, we have appreciated the submissions raised by Mr. Shrivastava, we are afraid that the same cannot be adverted to in the present case. If we apply the ratio laid down in the case of S.P. Jain [1973] 87 ITR 370 (SC) we cannot arrive at the conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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