TMI Blog1987 (1) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year we are concerned with is the assessment year 1950-51. The previous year for this assessment year is the Samvat year ending Diwali, 1949. The assessee is a Hindu undivided family which derives income from business in cotton, cotton seeds, oil cakes and grains and a business called " Goenka Cotton Company ". In the personal account of one Babulal, karta of the Hindu undivided family, in the books of Goenka Cotton Company, three cash credit entries appeared thus : Rs. 17,000 on 9th November, 1948 5,000 on 12th November, 1948 2,600 on 15th November, 1948 ------------- 24,600 ------------- In regard to these three entries, a statement was made before the Income-tax Officer by Babulal. It stated that " the money of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Act, 1922, for, inter alia, non-disclosure of the said amount of Rs. 24,600. By his order dated April 13, 1960, the Incometax Officer levied a penalty of Rs. 6,850 on the assessee for failure to disclose the said amount of Rs. 24,600 and the other amount of Rs.10,000. In the appeal to the Appellate Assistant Commissioner, the penalty order was confirmed. The assessee appealed to the Tribunal. The appeal was allowed by the Tribunal, basing itself upon a judgment of the Calcutta High Court which stated that the Income-tax Officer could not pass an order imposing penalty on the basis of arguments advanced before his predecessor. The Tribunal noted in paragraph 3 thus: " 3. Some other contentions were raised on behalf of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al year ending March 31, 1950. The Income-tax Officer passed an order imposing a penalty of Rs. 5,000 in regard to the non-disclosure of the said amount of Rs. 24,600. He accepted the assessee's contention in regard to the other amount of Rs. 10,000. On appeal, the Appellate Assistant Commissioner upheld the penalty. The assessee then appealed to the Tribunal. The Tribunal found that at the earlier stage the order imposing the penalty had been set aside by the Tribunal only because a proper opportunity of being heard was not given to the assessee as contemplated under the law. The Tribunal considered the other objection " that the addition itself (of the said amount of Rs. 24,600) was not sustainable as the credits appeared in November, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the previous year assessable for the assessment year 1950-51..." It is out of this order of the Tribunal that the question posed to us arises. Mr. Dewani, learned advocate for the assessee, submitted that there was no justification for the issuance of a fresh notice to show cause why penalty should not be levied upon the assessee when the Tribunal had at the earlier stage allowed the assessee's appeal against the imposition of penalty. In his submission, it was clear from paragraph 3 of the Tribunal's order made at that stage that it had considered the contention on behalf of the assessee that the addition of the said amount of Rs. 24,600 to the total income of the assessee was unsustainable as the credits appeared in November, 1948, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1950-51, Mr. Dewani based his answer in the affirmative upon the judgment of this court in CIT v. Gokuldas Harivallabhdas [1958] 34 ITR 98 and the judgment of the Supreme Court which approved it in CIT v. Anwar Ali [1970] 76 ITR 696. In Gokuldas Harivallabhdas' case [1958] 34 ITR 98, 105 (Bom), Chagla C.J., speaking for the Bench, observed that " the proceedings under section 28(1)(c), in their very nature, are penal proceedings and the elementary principles of criminal jurisprudence must apply to these proceedings, and nothing is more elementary, at least in this country in criminal jurisprudence, than the principle that the burden of proving that the accused is guilty is always upon the prosecution..." Assessment proceedings are taxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich we have referred to above, there can be little doubt that the said amount of Rs. 24,600 was added to the assessee's total income for the assessment year 1950-51, with which we are here concerned, as income from undisclosed sources. We are not impressed by Mr. Jetly's reliance upon the last of the Tribunal's orders, wherein it has been stated that the said amount of Rs. 24,600 was derived from speculation business, for the Tribunal itself has therein stated that " it is not in dispute that the speculative transactions were not a part of the business of the assessee ". The terms of all the earlier orders unmistakably point to the conclusion that the said amount of Rs. 24,600 was income from undisclosed sources. Upon this basis, we tur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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