TMI Blog1995 (8) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 271(1)(c) of the Income-tax Act, 1961 ? (iii) Whether the Tribunal is in law justified in deciding the appeal without going into applicability of Explanation to section 271(1)(c) to the assessee's case ?" We have heard Sri Shekhar Srivastava, learned counsel for the Revenue, and Sri Sakeel Ahmad, learned counsel for the assessee. The proceedings relate to the assessment year 1969-70 for which the assessee filed a return declaring an income of Rs. 18,139. The income finally determined was, however, Rs. 55,767. The Inspecting Assistant Commissioner levied a penalty of Rs. 38,000 calling in aid the Explanation to section 271(1)(c) of the Act. The assessee appealed to the Income-tax Appellate Tribunal which al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 purpose of making or earning any income included in the total income but which has been disallowed as a deduction), such person shall, unless he proves that the failure to return the correct income did not arise from any fraud or any gross or wilful neglect on his part, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of clause (c) of this sub-section. Learned counsel for the Revenue placed reliance on the judgment of the Supreme Court in CIT v. Mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings because this does not arise out of the order of the Tribunal. Reliance was also placed on a judgment of the Kerala High Court in CIT v. Saraf Trading Corporation [1987] 167 ITR 909. This authority is of no help in the present case because, in that case, the Tribunal had recorded a finding that the assessee had discharged its burden of proving that there was no concealment of income. In the case before us, there is no such finding recorded by the Income-tax Appellate Tribunal. In view of the above discussion, we find that the Income-tax Appellate Tribunal did not approach the issue correctly and wrongly placed the burden of proof on the Revenue without holding that the Explanation to section 271(1)(c) of the Act could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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