TMI Blog1994 (10) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... d Rs. 2,54,000 while in respect of unsecured loans it was Rs. 15,973 and Rs. 1,21,000 in respect of assessment years 1983-84 and 1984-85 respectively. But no details were filed by the assessee in respect of such increase. The Assessing Officer in the course of assessment proceedings asked the assessee to furnish details in respect of these cash credits. In spite of various opportunities given to the assessee, it did not produce any details whatsoever before the Assessing Officer. The Assessing Officer therefore made exparte assessment on 23-3-1987 and assessed the receipt byway of increase in share capital and unsecured loans as income from undisclosed sources. The penalty proceedings under section 271(1)(c) were also initiated in respect of these additions by the Assessing Officer while completing the assessment proceedings. 3. As appeal was filed by the assessee before the CIT(A) who also confirmed the order of the Assessing Officer vide his order dated 17-8-1990 as according to him the assessee did not even file any evidence before him. He also held that the assessee has not even discharged the primary onus of disclosing the basic material facts which lay upon it. 4. An appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing at pages 26 and 27 of the paper book to show that the Assessing Officer did not invoke the Explanation 1 to section 271(1)(c). He also referred to the order of assessment wherein also the said Explanation had not been invoked while directing the office to issue penalty notices. It was also stated by him that even in the orders of penalties there is no mention of the said Explanation. The crux of the argument was that it is only the Assessing Officer who could invoke the Explanation while levying the penalty and no other authority is empowered to invoke the same. In support of his contention he relied upon the judgment of Bombay High Court in the cases of CIT v. P.M. Shah [1993] 203 ITR 792 and CIT v. Dharamchand L. Shah [199] 204 ITR 462. 8. On the other hand the learned departmental representative argued that the appeal proceedings are in continuation of the assessment proceedings and therefore the CIT (Appeals) could do what the Assessing Officer could have done. The crux of his argument was that the CIT (Appeals) could correct the mistake committed by the Assessing Officer. In support of his contention he relied upon the judgment of the Hon'ble Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CIT v. Anwar Ali [1970] 76 ITR 696 would apply to the facts of the present case. Therefore, the penalty cannot be imposed on the mere findings arrived at in the course of assessment proceedings as these findings, though relevant, are not conclusive. (ii) That all the facts on the record should be taken into consideration in deciding the justification of penalty imposed by the Assessing Officer. (iv) That addition on account of unexplained share capital is itself highly debatable in view of the two judgments of the Delhi High Court in CIT v. Stellar Investment Ltd. [1991] 192 ITR 287 and CIT v. Sophia Finance Ltd. [1994] 205 ITR 98 (FB). (v) That section 68 is only a deeming provision for assessment purpose only but it should not be applied in the penalty proceedings. On the other hand the departmental representative's contentions are as under :-- (i) That on facts the additions have been confirmed by the Tribunal and therefore that has to be treated as income of the assessee. (ii) The assessee has not discharged the burden of disclosing even the primary facts in respect of additions made by the Assessing Officer. No details whatsoever were furnished by the assessee be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re a fact which is in the special knowledge of a particular person and he hides or withholds the same from the knowledge of other, he can be said to have been concealed the said fact. Hence a person can be said to have concealed the particulars of income only when he is under obligation to disclose the same and withholds the same from the knowledge of the Assessing Officer. Since it is the duty of the assessee to disclose the basic and primary facts which are within his special knowledge, he would have disclosed the relevant details in respect of increase in the share capital and unsecured loans either in the return or in the course of assessment proceedings. Even if the same were not disclosed and the additions had been confirmed by the Tribunal, the assessee had also a chance to disclose them in the course of penalty proceedings to show prima facie that receipts in question were not the income of the assessee. We have perused the material placed before us and the orders of the Assessing Officer was well as the CIT(A) but we do not find anything about the existence of any of the details before the Assessing Officer. 13. The learned counsel for the assessee has referred to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee wanted to hide the same from the Assessing Officer. The assessee had every chance to file these details in the assessment proceedings as well as penalty proceedings. But it chose not to furnish the same for the reasons best known to it. Even it is not known whether the payment is through cash or cheque. The dates of the transactions are also not known. Even before us, no other material has been brought. Even at this stage the assessee has not made any request for producing any other material. His only contention was that on the basis of information of the record, it could not be said that there was concealment of particulars of income by assessee. Mere information given by assessee before CIT(A) is not sufficient to hold against the revenue. In view of this special non-cooperative attitude of the assessee we hold that it concealed the particulars of income which it was under the obligation to furnish the same. The revenue cannot be expected to discharge the onus which is impossible. 15. The ratio of judgment of the Supreme Court in the case of Anwar Ali is relevant only when the assessee tenders explanation which is found to be unbelievable. It is in this context that the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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