TMI Blog2007 (9) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... R. S. MURALIDHAR JJ. J. R. Goel for the Commissioner. R. M. Mehta with Ms. Radha Rangaswamy and Simran Mehta for the assessee. JUDGMENT 1. In this reference under section 256(1) of the Income-tax Act, 1961 ("the Act"), relevant to the assessment year 1974-75, the following question has been referred for our opinion : "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that the penalty provisions of section 271(1)(c) with its amendment are not applicable in this case by ignoring the material fact that the addition responsible for levy of penalty was confirmed by the Income-tax Appellate Tribunal itself and held to be a device to claim a non-existent l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Explanation thereto read as follows : "271. Failure to furnish returns, comply with notices, concealment of income, etc.- (1) If the Income-tax Officer or the Appellate Assistant Commissioner in the course of any proceedings under this Act, is satisfied that any person-. . . (c) has concealed the particulars of his income or furnished inaccurate particulars of such income he may direct that such person shall pay by way of penalty-. . . (iii) In the cases referred to in clause (c) in addition to any tax payable by him, a sum which shall not be less than, but which shall not exceed twice, the amount of the income in respect of which the particulars have been concealed or inaccurate particulars have been furnished. Explanation.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the Explanation to section 271(1)(c) of the Act is concerned, there is no doubt that the onus to prove that there is no failure to return the correct income is on the assessee. If there is any fraud or any gross or wilful neglect the assessee will be deemed to have concealed the particulars of his income or furnished inaccurate particulars of income. 10. In the present case, there is no allegation that there was any gross or wilful neglect on the part of the assessee to declare the correct income. The question that arises is whether the assessee has committed any kind of fraud. 11. It is difficult to say, on the facts of the present case, that the assessee had committed any fraud notwithstanding the strong words used by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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