1977 (4) TMI 24

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..... t for a mandamus requiring the Income-tax Appellate Tribunal to refer the following question : " Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining a penalty of 20 per cent, of the tax between the income assessed at Rs. 6,76,812 and the income returned according to the return of June 28, 1965, at Rs. 5,22,609 ? " The assessee, a partnership firm of M .....

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..... ,01,908 was shown as the net profit. The total income was thereafter Rs. 5,22,609 which was shown to be the net income for the accounting period. The Income-tax Officer disallowed the deduction of Rs. 2,22,958 on account of the terminal loss as, according to him, this loss had occurred in December, 1964, and, therefore, no deduction could be allowed on this account in the assessment year. Consequ .....

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..... that certain minor modifications which were made in submitting the return of 27-9-1968 (based on actual receipts received after 31-12-64) could not have been made in submitting the return on 28-6-65, there is a difference of Rs. 9,511 between 80 per cent. of the income assessed and the income returned on 27-9-1968. The Explanation to section 271(1)(c) is prima facie applicable. The learned counsel .....

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..... in December, 1964, i.e., the close of the next accounting period. Since the sale of assets did not take place in this accounting period, the assessee certainly could not have apportioned any portion of the loss to this accounting period. The assessee was in error in making such apportionment and the assessee not having shown the date of sale in the consolidated accounts, we are of the view that th .....

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..... ials available on the record, held that the assessee had failed to rebut the presumption and to show that the failure to return the correct income did not arise from any fraud or any gross or wilful neglect on his part. As held in Basant Lal Om Parkash v. Commissioner of Income-tax [1972] 83 ITR 356 (Punj), a case for the imposition of penalty has to be decided on the material on record and it is .....

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