9911796707
TMI Blog2002 (8) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975-76 and the relevant accounting period is year ended on June 30, 1974. The applicant-assessee is a partnership firm which came into existence with effect from April 1, 1974, under a deed executed on April 2, 1974. The said partnership comprised of one Shri Arvindkumar Babubhai and Smt. Kokilaben Chandravadan. The said Shri Arvindkumar was a student of first year in the college. It appears that the assessee-applicant made payments on various dates without having sufficient cash balance on the date of payment. The details of such payments are as under: ---------------------------------------------------------------- Sr. Amount Actual date Date on which Opening cash No. & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 10-5-74 Rs. 34.25 3. Rs. 43,300 10-5-74 13-5-74 Rs. 31,467.25 ---------------------------------------------------------------- Rs. 64,280 ---------------------------------------------------------------- The Income-tax Officer, therefore, added a sum of Rs. 64,280, as income from undisclosed sources. The assessee's appeal against the said assessment failed up to the level of the Tribunal and thus the addition came to be confirmed. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the assessment proceedings were going on the relations with the accountant had been strained resulting in the assessee being unable to substantiate its explanation. In support of the submission, that on these set of facts and circumstances no penalty was leviable reliance was placed on the following three decisions of this court: (1) National Textiles v. CIT [2001] 249 ITR 125; (2) Kantilal Manilal v. CIT [1981] 130 ITR 411; and (3) CIT v. Jalaram Oil Mills [2002] 253 ITR 192. An alternative contention was raised by Mr. Divetia to the effect that the authorities below, including the Tribunal failed to apply the correct provision of law and hence the matter should be remanded to the Tribunal for applying the correct provision and appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that as required by the said provision the assessee had failed to discharge the burden which lay upon the assessee and further that the explanation tendered by an assessee had to be real and plausible and which was supported by some cogent material evidence. It was therefore contended that no case was made out to interfere with the order of the Tribunal in any view of the matter. There is no dispute between the parties that the Explanation as was existing up to March 31, 1976, was applicable in the case of the assessee for the assessment year under consideration. We would have accepted the plea for remanding the matter to the Tribunal for applying the said Explanation, but for the fact that the assessee has not been able to show, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking clarification or getting summons issued asking the accountant to confirm the averment made by the assessee. In the light of these facts if the authorities, including the Tribunal, have come to the conclusion that the assessee has failed to discharge the onus which lay on it no infirmity can be found. The Supreme Court in the case of Mussadilal Ram Bharose [1987] 165 ITR 14 has specifically laid down the scope of the Explanation in the following words: "The position, therefore, in law is clear. If the returned income is less than 80 per cent, of the assessed income, the presumption is raised against the assessee that the assessee is guilty of fraud or gross or willful neglect as a result of which he has concealed the income but thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... names of its lenders at a period of four years from the date of payment during the accounting period, the assessee was not in a position to establish that it had issued any direction to its accountant. If this was the situation at a length of the period of four years, in the normal course of conduct of human affairs it is not believable that the assessee would be in a position to give the names of its lenders or establish that it had issued any instructions to its accountant after a period of 27 years or more. In these circumstances, we do not find this to be a fit case whereby the applicant-assessee must be granted a second innings. As laid down by this court in the case of CIT v. Harikishan Jethalal Patel [1987] 168 ITR 472, it is neces ..... X X X X Extracts X X X X X X X X Extracts X X X X
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