TMI Blog1996 (8) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... of law in confirming the penalty imposed under section 271(1)(c) of the Income-tax Act, 1961, solely on the basis of reasons given in the assessment order and without considering the entirety of the facts and circumstances as well as the legal position relevant to the issue ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in setting aside the order of the Commissioner of Income-tax (Appeals) cancelling the penalty imposed by the Deputy Commissioner of Income-tax (Assessment), Special Range, on mere surmises in the absence of a clear finding in regard to furnishing of inaccurate particulars of income in the orders passed by the lower authorities as well as in its own order ?" For the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard Dr. A. K. Saraf, learned counsel appearing on behalf of the assessee, and Mr. U. Bhuyan, learned junior standing counsel for the Revenue. Dr. Saraf submits that there being no material whatsoever regarding concealment of income or furnishing inaccurate particulars of income, the Assessing Officer had no jurisdiction to initiate penalty proceedings under section 271(1)(c) of the Act. Dr. Saraf further submits that unless there is some material on the record the authority shall have no jurisdiction to initiate penalty proceedings and pass order accordingly. Learned counsel further submits that the proceeding under section 271(1)(c) of the Act is a proceeding quasi-criminal in nature and unless there is material on the record regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee could not furnish any cogent reason. I, therefore, hold that the assessee-firm has furnished the inaccurate particulars of income and as such I impose penalty of Rs. 2,90,672 as minimum penalty under section 271(1)(c) of the Income-tax Act, 1961." On reading of the above order, it appears that there was no material whatsoever before the Assessing Officer at the time of initiation of penalty proceedings. Mr. U. Bhuyan, on the other hand, argues before us that the order of the Tribunal and the order passed by the Assessing Officer at the time of initiation of penalty proceedings clearly indicate that there were sufficient materials for initiation of proceedings under section 271(1)(c) of the Act. We have gone through the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the said amendment, deletion of the word 'deliberately' which preceded the word 'concealed', shifted the onus to prove the mental state to the assessee. We are of the view that the onus that has been shifted is rebuttable. It also does not mean that the Income-tax Officer or the Tribunal should not look into the fact as to whether the assessee-firm fraudulently concealed the income. We do not find any finding in that regard." We have gone through the order passed by the Assessing Officer who initiated the penalty proceedings. We do not find any material for initiation of the proceeding. Merely because the Assessing Officer disbelieves the return by itself would not be sufficient for initiation of a proceeding. In view of the above, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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