C.S.P. Singh, J.
1. The Board of Revenue, in pursuance of the directions issued by this court, referred the following three questions for opinion :
'1. Whether under section 17 of the Act, it is deliberate and conscious attempt at concealment or furnishing of inaccurate particulars which is liable to penalty or the penalty can be levied even in respect of accidental or clerical mistakes ?
2. Whether the assessee is absolved of the default contemplated by section 17, if he filed a revised return under section 15(4) of the Act before the assessment is made ?
3. Whether, on the facts and in the circumstances of the case, the penalty of Rs. 10,000 has rightly been imposed upon the assessee ?'
2. For the year 1359F, the assessee filed his return on September 15, 1951. On October 21, 1951, a letter was received by the Naib Tahsildar for checking the books of the assessee which were duly filed. The Naib Tahsildar while checking the books found a number of omissions and inaccuracies in the register of collections maintained by the assessee's Ziledar, when compared with the monthly statement of revenue collections submitted by the assessee's Ziledar. In the statement of the Ziledar, the past collections up to May were not mentioned, although they were in the register maintained by the Ziledars. The amount involved was Rs. 44,000. Similar discrepancies were there in respect of other revenue collections. On October 25, 1951, a notice was received by the assessee for enhancement. Thereafter, an application was moved on October 27, 1951, for permission to file a revised return. This appears to have been allowed, and on November 7, 1951, a revised return was filed by the assessee. On November 17, 1951, a notice under s. 17 of the Act was issued calling upon the assessee as to why penalty should not be imposed. The Deputy Commissioner, Gonda, held that inasmuch as the revised return was filed after checking the accounts by the Naib Tahsildar, the filing of the revised return under Section 15(4) of the Act could not condone the default made by the assessee. Although he found that the mistake may have been on account of the inefficiency of the staff of the assessee, he held that the assessee was responsible for submitting the correct figure of revenue collections. He imposed a penalty of Rs. 10,000. On appeal the Commissioner held that considering the status, dignity and reputation of the assessee, it was not possible to hold that the assessee deliberately tried to conceal his income. He held that the mistakes in the return were due to clerical error. On a revision being filed by the State, the Board of Revenue, taking the view that as the assessee had applied for Correction of the return only after he received notice for enhancement, the filing of the revised return did not salvage the position of the assessee. It heldthat as the original return filed did not disclose the correct figures of collections, the penalty imposed by the Deputy Commissioner was justified.
3. The relevant part of Section 17 of the Act runs thus :
'If......assessing authority...... is satisfied that an assessee has concealedthe particulars of his agricultural income or has deliberately furnished inaccurate particulars of such income and has thereby returned it below its real amount, he may direct that the assessee shall......by way of penalty.'
4. Section 17 of the Act is drafted on the same lines as Section 28 of the Indian I.T. Act, 1922, and Section 271 of the I T. Act, 1961. There is unanimity of view that penalty proceedings being penal in nature the onus lies on the department to establish the necessary ingredients postulated by the statutory provisions in order that the assessee may become liable for penalty. See CIT v. Anwar Ali : 76ITR696(SC) . In the case of Amjad Ali Nazir Ali v. CIT : 110ITR419(All) , it has been held that the fact that a discrepancy in the return has been pointed out by the assessing authority is not conclusive of the matter unless it is established that the error was on account of the conscious act of the assessee. In the present case, the Board of Revenue has been swayed entirely by the consideration that the discrepancy was discovered by the Naib Tahsildar, and it was only then that the revised return was filed. The appellate authority had given a finding that the assessee had not deliberately concealed his income. The Board of Revenue has given no clear finding that the assessee had concealed his income or had deliberately furnished inaccurate particulars. In the absence of such a finding it was not permissible for the Board to have imposed the penalty under Section 17 of the Act, as the assessee became liable to penalty only in case, on evidence available on the record, the assessing authority found that the assessee had concealed the particulars of his income or has deliberately furnished inaccurate particulars of such income. In the absence of such a finding or evidence an order under Section 17 of the Act cannot be sustained.
5. In view of these conclusions, it is not necessary to answer the second question. The first question is answered by saying that a penalty under Section 17 of the Act can be imposed only in case there is a deliberate and conscious attempt to conceal or to furnish inaccurate particulars of income. The third question is answered in the negative. The second question is returned unanswered. The assessee is entitled to his costs which are assessed at Rs. 200.