TMI Blog1979 (2) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... unting year ending 31st March, 1960. The total income returned included a sum of Rs. 14,000 in respect of a picture by name Chand produced by Tasviristan, which was a proprietary concern of one Kuldip Saigal, referred to by the Tribunal as " Kuldip ". The written contract in respect of the picture Chand between the aasessee and Kuldip was executed on 5th April, 1958, showing that Kuldip was to pay to the assesse a sum of Rs. 25,000 for his role in the picture. Rs. 1,000 was paid on that day and the balance of Rs. 24,000 was payable before the completion of the assessee's work in the picture. The shooting of the picture commenced in November, 1958. It continued till the middle of June, 1969. The picture itself was released for exhibition in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Rs. 26,000 was, therefore, made to the total income of the assessee. In the appeal filed by the assessee, the AAC took the view that no value could be attached to the account books maintained by Kuldip because it was not shown to the assessee. He further took the view that the statement of Kuldip that Rs. 26.000 were paid in cash could not be accepted because there were no vouchers evidencing these payments, though the earlier payments were evidenced by receipts. The AAC also considered the fact that for almost a period of 10 months Kuldip had not demanded any receipt for Rs. 26,000. It may be stated at this stage that it was only by a letter dated 12th May, 1960, that Kuldip had written to the assessee that he had not sent a receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,000 for unexplained hundis, which was, however, later deleted by the Tribunal, the ITO had initiated penalty proceedings against the assessee by issuing a notice under s. 271(1)(c) of the I.T. Act, 1961. Since the minimum penalty leviable exceeded Rs. 1,000, the matter was referred to the IAC under s. 274, who imposed a penalty of Rs. 30,000 upon the assessee for concealment of particulars of income. The assessee then filed an appeal against the order of the IAC before the Tribunal. The Tribunal, on a reappreciation of the circumstances which were apparent from the facts of the case of the assessee as well as the correspondence between the assessee and Kuldip, held that the cash book maintained by Kuldip was not a genuine one and there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joshi appearing on behalf of the revenue has contended that this was not a case in which the assessee had offered any explanation and that explanation was rejected but that a finding was recorded by the Tribunal in the quantum appeal after consideration of the entire evidence and having regard to the manner in which the question raised has been framed, since in the quantum appeal it has been held that it was proved that the assessee had received Rs. 20,000 as professional income, which was not disclosed by him in the return, the order of penalty should have been sustained by the Tribunal. The proceedings for penalty against the assessee were taken under s. 271(1)(c) of the I.T. Act, 1961. Under that provision, before the ITO can exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee concealed the particulars of his income or deliberately furnished inaccurate particulars of such income. Therefore, the department must establish that the receipt which is said to have been concealed constitutes income of the assessee. It was held in that case that it is perfectly open to the ITO in the penalty proceedings to consider his own finding that the receipt constituted an income for the assessment year, but he is not bound by that finding. It was then observed : " If for instance, any other evidence was produced in the penalty proceedings, it would be open to him to come to a different conclusion. If it was open to the Income-tax Officer to come to a different conclusion, clearly equally it was open to the Tribunal to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult to find any infirmity in the view taken by the Tribunal that there was no question of drawing any adverse inference against the assessee for the non-production of the record showing the business engagements of the assessee. In the penalty proceedings, the burden was on the revenue to prima facie show that the assessee had received Rs. 20,000, This evidence consisted of Kuldip's statement and the so-called entries in his account books. Kuldip has been found to be an unreliable witness, whose relations with the assessee were strained. The original cash book or account books were not anywhere to be seen. Not only did they remain unproved, but they were, in fact, not produced at all. If this was the only material to show that the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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