1978 (7) TMI 90

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..... ght in holding that the penalty under s. 271(1)(c) of the I.T. Act, 1961, was not exigible. For the assessment year 1964-65, the assessee filed a return on 3rd January, 1969, declaring a total income of Rs. 3,700. During the course of assessment proceedings the ITO found that deposits totalling Rs. 9,400 existed in the assessee's account books. These were in the accounts of Gyan Prakash, Sushil K .....

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..... bunal observed : "After perusing the order of the IAC, as also the assessment order and taking into consideration the arguments of both the sides, I am of the view that it is a case of no explanation in respect of the cash credits. When the assessee does not explain its cash credits, the assessment may be justified but the penalty is not on the basis of no explanation by the assessee in respect o .....

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..... 116 ITR 468 (All)) dealt with this problem. It was observed that Anwar Ali's case [1970] 76 ITR 696 (SC) dealt with the penalty proceedings for the year 1947-48 under s. 28(1)(c) of the Act of 1922, which was in pari materia with s. 271(1)(c) of the Act of 1961 as it stood prior to its amendment in 1964, with effect from 1st April, 1964. These provisions provided for levy of penalty in cases wher .....

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..... by the Explanation, namely, where the returned income is less than 80 per cent. of the assessed income, the concealment on the part of the assessee is presumed. The presumption is rebuttable by the assessee proving that the failure to return the correct income was not due to fraud or gross or wilful negligence on his part. In that case this court emphasised that the Explanation raises a threefol .....

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..... prove the charge of concealment or of furnishing inaccurate particulars. This was incorrect. Further, Anwar Ali's case [1970] 76 ITR 696 (SC) is inapplicable, because when that case was decided there was no Explanation in the statute. The Tribunal ought to have applied its mind to the materials on the record and should have recorded a finding whether the assessee had been able to establish that th .....

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