9911796707
TMI Blog2003 (4) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... t to concealment by fiction. Therefore, the mischief of section 271(1)(c) of the Income-tax Act, 1961, is attracted in this case. That was how this matter was dealt with by the income-tax authorities up to the Tribunal, against which this reference has been sought for. Mr. J.P. Khaitan, learned counsel for the assessee, has pressed three contentions for our consideration. First, the amount shown in the opening balance, of the next previous year can be treated to be an income for the next previous year. Though it could be treated as income of the earlier previous year by reason of the addition, yet the finding with regard to the quantum proceedings will not conclusively determine the case for the purpose of penalty proceedings. The court ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the partners as their income and such returns have since been accepted. The Department itself had treated the same amount once as income of the assessee and again as income at the hands of the partners. Unless the amount is owned by the assessee in view of section 69A, there cannot be any question of concealment. When the Department itself had accepted the same in both ways, there cannot be any conclusive proof that this amount was owned by the assessee. Tnerefore, no penalty can be imposed in such a case. Mr. Khaitan has led us through the order imposing penalty as well as the decisions cited by him, viz., CIT v. Ashok Timber Industries [1980] 125 ITR 336 (Cal) to support his first contention and National Textiles v. CIT [2001] 249 ITR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be treated to be an income of the following previous year. The acceptance of revised returns submitted by the partners claiming the same to be that of their own income is wholly immaterial. Even if some-one claims the income added to the assessee as their own income by reason of section 69A, the authority is empowered to add the same as income of the assessee. As such the subsequent claim by a third party will not negate the same. Such authority can also be available to the Revenue when deciding the question of imposing penalty. But, however, such finding has to be arrived at independent of the finding in the quantum proceedings. According to her, the Revenue has arrived at an independent finding. As such the three contentions raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t two views are possible. At the same time, this income was shown in the capital accounts of the partners. Whether this was the income of the partners or of the assessee is also a question, which can be raised requiring determination. The determination in the quantum proceedings not being final, this question has to be examined. It does not appear that the learned Tribunal had examined this question. But even if this was examined, still then two views could be possible. It can be an income at the hands of the assessee or an income at the hands of the partners. Whether it is an income of the one or the other is immaterial for our present purpose since it was in relation to the relevant previous year in respect of which it was treated to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the assessee is found to be the owner. The material difference between sections 68 and 69A is that section 68 does not require that the amount is to be owned by the assessee. It only deals with any amount shown in the books of account of the assessee. Whereas section 69A deals with money, etc., owned by the assessee and found in his possession. Therefore, ownership is one of the considerations when the matter comes under section 69A. Admittedly, this amount was not shown in the books of account of the assessee and as such it could not have been treated under section 68. Admittedly, duplicate books of account were chanced upon by the income-tax authority in a search conducted under section 133. As such it would come under section 69A. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the explanation was false or mala fide. The learned Tribunal has not arrived at any such conclusion. Having regard to the facts and circumstances of the case, as was held in National Textiles [2001] 249 ITR 125 (Guj), no reasonable and positive inference could be drawn. Because of the two stands taken by the income-tax authority in this case by adding the amount in the income of the assessee and again accepting the same at the hands of the partners, the income-tax authority cannot fall back on one and reject the other. In Ashok Timber Industries [1980] 125 ITR 336 (Cal), in a similar circumstance, it was held that it could have been treated to be an income of the following previous year when it is shown as the opening balance of that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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