TMI Blog1992 (3) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... there below ? (2) Whether the finding of the Tribunal that since the total income of the assessee was determined on the basis of estimate made, it cannot be said that failure to return the correct income was on account of any fraud or any gross or wilful neglect on the part of the assessee and the assessee had discharged the burden which lay upon it under the Explanation is correct in law and sustainable from the material on record ? " A few facts necessary for the purpose of disposal of this case are as under : The assessee is carrying on the business of manufacturing diaries, account books, calendars, invitation cards, etc. For the assessment years 1967-68 and 1968-69, it had filed separate returns of income declaring total income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the manner adopted by the Income-tax Officer. This, according to the Income-tax Officer, was a clear indication that the assessee wanted to conceal his real income. Taking this view, be held that section 271(1)(c) was clearly attracted in this case and, in view of the Explanation to that section, the assessee must be deemed to have concealed the particulars of his income or furnished inaccurate particulars of his income. The assessee went in appeal to the Appellate Assistant Commissioner of Income-tax. The appeals for both the years were heard together. The assessee urged that the facts for the assessment years 1967-68 and 1968-69 being similar to the facts of the assessment years 1964-65 and 1966-67 and the Tribunal having already h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was on account of any fraud or any gross or wilful neglect on the part of the assessee. In our opinions the assessee had discharged the burden which lay on it under the Explanation. Therefore, in any view of the matter, no penalty was leviable. " The Tribunal confirmed the order passed by the Appellate Assistant Commissioner and the appeals filed by the Department were dismissed. On being moved by the Department, the Tribunal has referred the two questions which are set out above. What is urged by learned counsel for the Revenue is that the Tribunal was wrong in holding that since the total income of the assessee was determined on the basis of the estimate made by the Income-tax Officer, it cannot be said that failure to return the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j). He also drew our attention to the Full Bench decision in Vishwakarma Industries v. CIT [1982] 135 ITR 652 (P 11) and the decision in CIT v. Nathulal Agarwala and Sons [1985] 153 ITR 292 (Patna) [FB]. It is not necessary to refer to all these decisions, as the contention raised by the Revenue in support of which all these decisions have been cited is really misconceived. Though the order of the Tribunal is not happily worded, as it is not clearly stated as to how the assessee can be said to have discharged the burden arising out of the Explanation to section 271(1)(c), if the order is read as a whole, it becomes clear that the Tribunal was aware of the correct position as indicated by the decisions cited by learned counsel for the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on it under the Explanation ". Thus, on facts, the Tribunal was of the view that the assessee had discharged the burden of rebutting the presumption which arose as a result of application of section 271 (1)(c). In short, the Tribunal believed the explanation of the assessee that the estimate made by him of his income was bona fide and that the accounts and particulars of sales and expenses submitted by him were true. It was on the basis of this material that the Tribunal held that the assessee had discharged the burden. In view of the facts and circumstances of the case, it cannot be said that the view taken by the Tribunal is wrong. Therefore, both the questions referred to us are answered in the affirmative, i.e., against the Revenue a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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