TMI Blog1978 (7) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee owns a truck which is run in partnership with some other persons. He had 50 per cent. shares in two partnership firms. He filed a return on 29th July, 1968, disclosing an income of Rs. 4,000. The ITO, having come to know that the assessee had made investments to the tune of Rs. 15,000 in purchasing a truck, called upon the assessee to explain its source. The explanation offered by the assessee was not found believable and a sum of Rs. 13,000 was added as income from undisclosed sources. The ITO initiated penalty proceedings. The IAC found that the assessee did not maintain accounts of his income and outgoings. He did not produce any documentary evidence to sustain his explanation that he had taken Rs. 2,000 as loan from his father- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record do not point to this direction. " The Tribunal further held that the amendment brought about in subcl. (iii) of cl. (c) of sub-s. (1) of s. 271 was effective from 1st April, 1968, and was not retrospective. The IAC had no jurisdiction to impose penalty under the amended section. This has reference to the quantum of imposable penalty. The question of law referred to us, however, does not take in the quantum of penalty imposed on the assessee. The IAC had recorded several concrete findings. We do not find any discussion of those findings in the judgment of the Tribunal. The Tribunal has made general remarks that the explanation was not so unreasonable as to warrant a conclusion that the assessee was guilty of fraud or gross or w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) unless he proves that the failure to return the correct income did not arise from any fraud or any gross or wilful neglect on his part. In other words, the presumption is that the assessee has concealed or furnished inaccurate particulars. This presumption is rebuttable only if the assessee proves affirmatively that the failure to return the correct income was not due to fraud or any gross or wilful neglect on his part. Thus, the burden is squarely on the assessee, not in relation to concealment either of income or of particulars thereof, but in a very distinct matter. The burden of proof on the assessee is that the failure to return the correct income was not due to either of the three things, fraud, or gross or wilful neglect. On this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to cl. (c) of s. 271(1). After this, it is hardly of any assistance in either construing the Explanation or in applying it. In view of the position that the Tribunal has not recorded appropriate or adequate findings, it is not possible for us to answer the question referred to us. In CIT v. George Henderson and Co. [1967] 66 ITR 622 (SC) and also in CIT v. Greaves Cotton and Co. Ltd. [1968] 68 ITR 200, the Supreme Court instead of calling for a supplementary statement of the case directed the Tribunal to rehear the appeal in similar circumstances. This decision was followed by the Madras High Court in B. Muniappa Gounder V. CIT[1976] 102 ITR 787. We feel that in the interest of justice it will be reasonable to adopt that course in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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