TMI Blog1972 (9) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... 1922 (hereinafter referred to as the " old Act "), on a total income of Rs. 1,38,284 which included a sum of Rs. 1,00,000 as income from undisclosed sources. The sum of Rs. 1,00,000 was comprised of two sums of Rs. 50,000 each. The first sum of Rs. 50,000 was made up of four items credited on different dates in September, 1950, in the names of two members of the assessee-family in the suspense account in the Mussoorie set of accounts of the assessee. The other sum of Rs. 50,000 appeared as cash credit in the names of the members of the assessee-family in the account books of M/s. Veer Industries Ltd., Delhi. The assessee was not able to explain the nature and source of these deposits and they were accordingly held by the Income-tax Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of the department and against the assessee. Now, coming to the second question, it appears that in the appeal of the assessee against the quantum of income, the Tribunal accepted the assessee's statement that out of cash credits of Rs. 50,000 appearing in the suspense account of the Mussoorie set of accounts a sum of Rs. 30,000 was available to the assessee out of the withdrawal made in the immediately preceding year. Thus, the income from undisclosed sources from Mussorrie set of accounts was reduced by Rs. 30,000. The second amount of Rs. 50,000 was made up two items of Rs. 25,000 each credited on 25th January, 1951, in the names of Chander Sain Jain and Manor Dass Jain, the two members of the assessee-family. With regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled against in I.T.A. No. 7361 of 1965-66 that the assessee had introduced concealed income to the extent of Rs. 1 lakh and that penal action is called for. " Again, in paragraph 12 of the said order the Tribunal observed : " In the instant case, the deposit of Rs. 50,000 was surrendered for inclusion in the income of the family 'as desired', provided that no penalty is imposed. In our view, the fact that the deposit is assessed as income of the family does not by itself justify the department in imposing a penalty particularly in view of the terms of the letter dated 18-6-1963. " Mr. Deokinandan urges that this is a case in which the assessee had admitted the sum of Rs. 50,000 to be its income and since this income had not been sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above that some sort of assurance was given by the Income-tax Officer to the assessee that if the amount was offered for assessment, no penalty would be levied. It is upon these considerations that the Tribunal appears to have held that the charge of concealment was not proved. In our opinion the Tribunal was justified in doing so. The decision of the Delhi High Court in Durga Timber Works v. Commissioner of Income-tax [1971] 79 ITR 63 (Delhi) is clearly distinguishable. In that case, the assessee admitted certain investments to be its income. The admission, however, was not influenced or induced by the Income-tax Officer. This takes us to the next contention of the learned counsel for the department. He relies on the Explanation append ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow, it is clear that this point was not raised on behalf of the department before the Income-tax Appellate Tribunal. There is no reference to it in the appellate order of the Tribunal, nor is indeed any reference to it in the department's application under section 256(1). Such a question, therefore, did not arise out of the order of the Tribunal, nor has indeed the Tribunal referred any such question to us. Mr. Deokinandan says that the point raised by him is merely an aspect of the question already referred to us and it is not a new question. We do not agree, because the applicability of the Explanation entails decision on certain questions of law and facts. The first question that immediately arises is as to whether the Explanation would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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