TMI Blog1994 (9) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... anation thereto is justified ? 2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal has been right in law in holding that the assessee could not be said to have failed to return the correct income or had filed inaccurate particulars thereof, visiting him with penalty under section 271(1)(c) read with the Explanation thereto ? 3. Whether, in view of the clear facts on record and the admission of the assessee to an addition of Rs. 40,000 as concealed income of the year, the Appellate Tribunal was justified in not sustaining the penalty under section 271(1)(c) and/or under the Explanation thereto ? " Upon a perusal of the materials on record, we find that the assessee was assessed in the status of indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee did not choose to summon those who had given evidence against the assessee before the Income-tax Officer for cross-examination before the assessment order was made, the Inspecting Assistant Commissioner should not have relied on the evidence without giving an opportunity to the assessee to cross-examine the witnesses in penalty proceedings. The Tribunal specifically found that in the present case simply because the assessee agreed that he should be taxed on the amount of Rs. 40,000 which was spent by him from outside the books and the source of which he could not explain, it did not follow that the amount of Rs. 40,000 was the undisclosed income of the assessee in the assessment year 1970-71. Relying on the judgment in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding by the Tribunal, the question whether the levy of penalty was valid could not be answered. This court observed, inter alia, that each case has to be considered according to the facts and circumstances of the case. Discussing the facts of the case in depth, this court, in view of the decision of the Supreme Court in the case of Indian Molasses Co. P. Ltd. [1970] 78 ITR 474, declined to answer the question. It is made clear that it would be open to the Tribunal to dispose of the appeal under section 260(1) of the Act. In the instant case, the facts are completely otherwise. In the present case, there is a clear finding by the Tribunal that no materials are on record to prove that the amount of Rs. 40,000 was the income of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
