TMI Blog1994 (9) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ? " The petitioner filed a return for the year relevant to the assessment year 1964-65 declaring a total income of Rs. 7,883. It is unnecessary to refer to various details of the income except to state that the Income-tax Officer added a sum of Rs. 25,000 shown as credited in the name of one Nawab Ahmed. The assessee never produced any evidence in support of his explanation that the amount was deposited by the said Nawab Ahmed in spite of several opportunities. The amount was shown as deposited by cash. The said Nawab Ahmed was also not assessed to any tax nor any interest was paid to him. In the circumstances, the Income-tax Officer found that this deposit of Rs. 25,000 in the name of Nawab Ahmed was the income of the assessee from undi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire approach of the Appellate Tribunal is erroneous in view of the Explanation added to section 271(1)(c) in the year 1964. Learned counsel also referred to a recent decision of the Supreme Court in CIT (Addl.) v. Jeevan Lal Sah [1994] 205 ITR 244, where according to learned counsel for the Revenue, the earlier decision in CIT v. Anwar Ali [1970] 76 ITR 696 was held no longer good law. Learned counsel for the assessee, on the other hand, contended that the finding of the Appellate Tribunal was essentially one of fact and the Tribunal has given an independent finding that the explanation offered by the assessee was acceptable and that he was not guilty of any fraud or gross or wilful neglect and the reference to Anwar Ali's case [1970 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 271(1)(c) along with its Explanation. As per the main section 271(1)(c) when the concerned authority in the course of any proceedings under the Act is satisfied that any person "has concealed the particulars of his income or furnished inaccurate particulars of such income, the authority may direct that such person shall pay by way of a penalty....." The Explanation which is relevant here reads as follows: " Explanation.--Where the total income returned by any person is less than eighty per 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main section 271(1)(c) by itself does not refer to any fraud or gross or wilful neglect. The penalty is attracted as already noted as and when there has been a concealment of the particulars of income and if the Explanation compels the authorities to draw a particular presumption, such a presumption shall have to be drawn and the burden will be certainly on the assessee to have the presumption rebutted. In CIT (Addl.) v. Jeevan Lal Sah [1994] 205 ITR 244, the Supreme Court pointed out that the law has undergone a change after the introduction of the Explanation to section 271(1)(c) in the year 1964 and the rule regarding burden of proof enunciated in Anwar Ali's case [1970] 76 ITR 696 (SC) is no longer valid. The Supreme Court quoted its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations highlight that the ratio of Anwar Ali's case [1970] 76 ITR 696 (SC) no longer holds the field. Mr. Aggarwal then relied strongly upon the decision of the Calcutta High Court in CIT v. Rupabani Theatres P. Ltd. [1981] 130 ITR 747. With utmost respect, we are not able to agree with the following observations in the aforesaid decision found (at page 758): " From the narration of the dates as to the state of law, it is abundantly clear that it could not be said that the Explanation, with which we are concerned, to section 271(1)(c) of the Income-tax Act, 1961, was introduced to nullify the effect of the judicial decision in the case of CIT v. Anwar Ali [1970] 76 ITR 696 (SC) because, as we have mentioned before, the Explanation was ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
