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Bishan Swarup Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberIncome-tax Reference No. 531 of 1965
Judge
Reported in[1972]85ITR635(All)
ActsIncome Tax Act, 1922 - Sections 28(1)
AppellantBishan Swarup
RespondentCommissioner of Income-tax
Appellant AdvocateP.N. Pachauri, Adv.
Respondent AdvocateB.L. Gupta and ;R.R. Misra, Advs.
Excerpt:
- pathak, j. 1. the income-tax appellate tribunal has referred the following question of law under section 66(1) of the indian income-tax act, 1922 : 'whether, on the facts and in the circumstances of the case, the tribunal rightly imposed a penalty of rs. 3,000 under section 28(1)(c) of the income-tax act, 1922 ?' 2. the reference relates to the assessment year 1947-48, the relevantprevious year ending on march 31, 1947. the income-tax officer noticeda number of cash deposits in the assessee's bank pass book and the accountbooks totalling rs. 47,050. the assessee explained that these depositsproceeded out of past withdrawals, but that explanation did not entirelysatisfy the income-tax officer who treated an aggregate sum of rs. 22,050as the assessee's income of the previous year from.....
Judgment:

Pathak, J.

1. The Income-tax Appellate Tribunal has referred the following question of law under Section 66(1) of the Indian Income-tax Act, 1922 :

'Whether, on the facts and in the circumstances of the case, the Tribunal rightly imposed a penalty of Rs. 3,000 under Section 28(1)(c) of the Income-tax Act, 1922 ?'

2. The reference relates to the assessment year 1947-48, the relevantprevious year ending on March 31, 1947. The Income-tax Officer noticeda number of cash deposits in the assessee's bank pass book and the accountbooks totalling Rs. 47,050. The assessee explained that these depositsproceeded out of past withdrawals, but that explanation did not entirelysatisfy the Income-tax Officer who treated an aggregate sum of Rs. 22,050as the assessee's income of the previous year from undisclosed sources. An appeal by the assessee to the Appellate Assistant Commissioner of Income-tax proved without result, and, thereafter, a second appeal to the Tribunalwas partially successful inasmuch as the Tribunal reduced the addition toRs. 17,915.

3. Subsequently, the Income-tax Officer issued a notice tinder Section 28(1)(c) of the Act against the assessee, and imposed a penalty of Rs. 3,000. The Appellate Assistant Commissioner set aside the penalty on the ground that the Income-tax Officer had not discharged the burden resting upon him to prove that the case called for the levy of a penalty. But, on appeal by the Income-tax Officer, the Tribunal came to a different view. The Tribunal held that no distinction could be drawn between the quantum of evidence required to support an assessment and the quantum of evidence required to justify the imposition of a penalty under Section 28(1)(c). Accordingly, it allowed the appeal.

4. We have heard learned counsel for the parties, and it seems to us clear that this case must be decided in accordance with the judgment of the Supreme Court in Commissioner of Income-tax v. Anwar Ali, [1970] 76 I.T.R. 696 (S.C.).. Having regard to what has been observed by the Supreme Court there, we hold that the Tribunal took an erroneous view of the burden of proof resting upon the Income-tax Officer. It was for the Income-tax Officer to show byclear evidence that the assessee could be reasonably said to have wilfully concealed material particulars of his income.

5. In the circumstances, the question referred is answered in the negative. The assessee is entitled to his costs, which we assess at Rs. 200. Counsel's fee is assessed in the same figure.


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