TMI Blog1991 (8) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... al income assessed, the ITO thought that this is a fit case for levy of which the particulars have been concealed or inaccurate particulars have been furnished amounted to Rs. 18,280 according to the ITO. He, therefore, levied penalty of Rs. 18,280. The additions confirmed by the CIT(A) were in respect of the following items: (i) Rs. 2,500 being cost of radiogram (ii) Rs. 2,500 being excess in pool capital (iii) Rs. 7,000 being low household expenses (iv) Rs. 6,780 being excess gold ornaments found in the course of search. The AAC confirmed the said penalty 3. Before us the learned counsel for the assessee contended that the aforesaid additions have been made on estimated basis by disbelieving the explanations submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by the learned representative and have also gone through the order of the departmental authorities. The first item of addition of Rs. 2,500 was confirmed by the Tribunal on the ground that assessee could not produce the receipt for the purchase of radiogram. It was contended on behalf of the assessee that there were ample withdrawals in earlier years and the assessee was in a position to purchase the radiogram from such adequate withdrawals. The chart of withdrawals given in para 6 of the Tribunal order shows that withdrawals in asst. yrs. 1970-71 to 1973-74 were substantially more as compared to withdrawal in asst. yr. 1974-75 (the year under appeal). This explanation of the assessee was not treated as satisfactory in the quantum pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than 20 per cent which is the only condition for determining the applicability of the said Explanations. The Explanations raised a legal fiction and the assessee was brought straight away within the ambit of the said provision. This legal fiction of the Explanation could, however, be displaced if the assessee proves that failure to return the correct income did not arise out of any fraud or gross or wilful neglect on his part. The assessee can, by leading positive evidence, prove that such failure to return the correct income did not arise from any fraud or gross or wilful neglect on his part or may prove if from the material which is also on record. If the material already existing on record is sufficient to prove the innocence of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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