TMI Blog1975 (9) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ok with effect from April 1, 1964 ? " The Tribunal has accordingly stated a case. The relevant assessment years are 1958-59, 1959-60, 1960-61, 1961-62 and 1962-63. For these years, reassessments were made under section 147 of the Act on the footing that certain cash credits which were not genuine had not been taxed. During the reassessment proceedings, the assessee by a letter dated December 6, 1966, intimated the Income-tax Officer thus: " ...... That, on the facts and in the circumstances of the case, it can be appreciated that the transactions relate to a period which is as old as six years and after lapse of such a long time, it will not be possible for me to produce the creditors (i.e., the vendors) before you by now, as on en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental representative that the incidence of concealment was reflected in those years by the assessee's counsel's petition dated February 17, 1968, the Inspecting Assistant Commissioner did not use this material for the levy of penalty and so if we sustain the penalty on this material which has not been processed through or the assessee was called upon to explain it would be flagrant violation of law. It will not be a case if the material is used against the assessee, of shift of stand but an entirely new case will be substituted instead ...... From this petition (dated December 6, 1966) it cannot be spelt out that the factum of introduction of self-money in the name of different fictitious creditors had been accepted by the assessee. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhai Shah and Commissioner of Income-tax v. Khoday Eswarsa and sons . In the Andhra Pradesh case, it was observed: " Whether the assessee has concealed particulars of his income or has deliberately furnished inaccurate particulars of such income is always a question of fact. In the Madhya Pradesh case, Dixit C.J. stated the position thus : " Here, as neither the Inspecting Assistant Commissioner nor the Tribunal found that the assessee's explanation was false and as there was no other material from which an inference of concealment of income could be drawn, no penalty could be imposed on the assessee. When the Tribunal has only held that the assessee's explanation with regard to the payment of Rs. 10,000 stands disproved and that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression was not deliberate. This onus, doubtless, is not, as in a criminal case, to be established beyond reasonable doubt, but is to be in accordance with the preponderance of probabilities as applicable to a civil suit." Same is the view expressed by a Bench of Rajasthan High Court in the case of Addl. Commissioner of Incone-tax v. Gem Palace. After discussing the law at some length, the following conclusion has been indicated: " In this view of the matter, the Explanation only gives rise to a rebuttable presumption and has the effect of placing the burden of proof on the assessee which formerly, before the Explanation was introduced, was on the department. We are, therefore, unable to accept the contention of the learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... si-criminal in nature, but departs from the normal well-established rule which would throw the burden of proof on the revenue to establish that the assessee had consciously concealed the particulars of his income or deliberately furnished inaccurate particulars in respect thereof. The onus of proof, on the other hand, has been placed on the assessee, who is required to prove the negative, that is, the absence of fraud or gross or wilful neglect on his part. This assessee is to be afforded an opportunity to furnish this proof. He would, in these peculiar circumstances, be taken to have discharged the onus, if he, in the absence of any proof to the contrary can raise probabilities in his favour or point out circumstances which can create doub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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