TMI Blog1976 (1) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... was asked to prove this claim, he expressed his inability to do so and filed as revised return, including this amount in Part III of the return. The assessee gave in writing that on account of inability to prove the source, he had offered the same for assessment. The ITO held that the concealment had been detected by the Department and as the assessee had not proved the source of investment and had admitted his offence, he was liable for penalty and imposed a penalty of Rs. 20,000. 3. Before the AAC, the assessee relied on the Supreme Court ruling in Khoday Eswarasa and Sons (83 ITR 369 1972 CTR SC 295) and Punjab and Haryana High Court ruling in Gumani Ram Siri Ram 85 ITR 67 (P H). The AAC, however, held that the case in hand was cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it is not necessary for him to given the assessee a specific opportunity to explain the requirements of the Explanation. 5. We have considered the rival contentions. It is indeed true that the investment of Rs 20,000 was never disclosed by the assessee. It was detected by the Department and, therefore, the revised return would not absolve the assessee from penalty, if penalty was otherwise imposable. However, before penalty can be imposed, it is incumbent on the Revenue to prove that the sum of Rs. 20,000 was the Revenue income of the assessee. The assessee had contended that the investment in the shop came out of the past saving and from petty hand-loans which, however, he could not prove. He, therefore, offered the said amount for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the sum of Rs. 20,000 represented the assessee's income, penalty cannot be sustained. The case is not covered by the Delhi High Court ruling in Durga Timber works case because the assessee never admitted that the sum of Rs. 20,000 was his concealed income as appears to have been admitted in Durga Timber work's case. The High Court's order in Dambal's case is distinguishable on fats. 6. As regards the Explanation, it is clear that the ITO never invoked it and the AAC has not considered it. It is too late in the day for the Department to rely the Expln. to s. 27(1)(c) because the Explanation raises a rebuttable presumption that where the total income returned is less than 80 per cent of the total income assessed, he shall be deemed to h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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