C.S.P. Singh, J.
1. The assessee owned a truck and was a partner in twofirms, M/s. Amolak Ram Ram Prakasth and M/s. Ram Prakash KulbhushanRai. For the year 1967-68, he filed a return showing an income ofRs. 4,000. During the course of assessment the ITO found that the assesseehad invested a sum of Rs. 15,000 for he purchase of a truck which was runin partnership. The assessee's explanation regarding the invest(sic)that a loan of Rs. 2,000 had be (sic) taken from his father-in-lawbalance had come out of his savings. The ITO , gav(sic)Rs. 2,000 only as coming from (sic) savings, and treatedincome from undisclosed sources. Penalty proceedings were also started against the asseasee and the matter was referred to the IAC. The IAC did not accept the assessee's explanation that the amount represented the income of the assessee for the year 1966-67, and the income up to the date of the investment during the previous year, and imposed a penalty of Rs. 14,000 under Section 271(1)(c). The Tribunal has allowed the appeal on the view that it was not established that the assessee had deliberately acted in defiance of law or was guilty of conduct, contumacious or dishonest, or had acted in conscious disregard of his obligation. It also held that it was not conclusively established that the assessee had committed a fraud in filing the return or was wilfully or grossly negligent.
2. It appears to us that the Tribunal has approached the question in a wrong perspective. In the relevant assessment year, in view of the first Explanation to Section 271(1)(c), in a case where the returned income was less than eighty per cent. of the assessed income, as is the case here, a presump-tion arose that the case fell within the throes of Section 271(1)(c), unless the assessee established that the failure to return the correct income was not due to fraud or any gross or wilful neglect on his part. As has been held by this court in the case of Smt. Rukmani Bahu v. Addl. CIT : 116ITR468(All) , followed subsequently in the case of CIT v. Gyan Prakash : 116ITR513(All) , once the position arises that the returned income is less than eighty per cent. of the assessed income, the onus shifts on the assessee to prove that he was not guilty of any fraud or gross or wilful neglect in filing a correct return. In such cases enquiry should be directed to the question whether the explanation given by the assessee establishes that the assessee had failed to file an accurate return of his income not due to any fraud or wilful or gross neglect on his part. It is only in case this is established, that the fiction raised by the Explanation stands rebutted. In the present case, the Tribunal has not considered the explanation of the assessee and has not given a clear finding as to whether the explanation offered was acceptable. It has allowed the appeal solely on the consideration already adverted to earlier. These considerations do not satisfy the requirement of Explanation 1 to Section 271(sic) The Tribunal should now re-examine the matter and decide as to whether the explanation given by the assessee was such as rebutted the presumption added by Explanation 1 to Section 271 of the Act.
3. In view of this conclusion it is not possible to answer the question asframed, and we accordingly return the question unanswered. The Tribunal(sic) hear the appeal and decided in accordance with law, keeping inobservations made by us above. In the circumstances, there shallas to costs.