1969 (7) TMI 14

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....tram was the karta. During the accounting year, on 20th July, 1952, the following credits appeared in the cash book of the assessee : Jankibai, mother of Ganpatram ... 10,000 Lakshmi Bai, wife of Ganpatram ... 4,000 Rukmini Bai, widowed daughter-in-law of Ganpatram ... 4,000 Ginni Bai, wife of grandson of Ganpatram ... 2,000 --------- 20,000 ---------- The assessee asserted that this sum of Rs. 20,000 belonged to the four ladies. This contention was rejected all through. A trippa book was produced at a certain stage. It was held to be not genuine. The sum of Rs. 20,000 was accordingly added to the income of the assessee. Thereafter, the Income-tax Officer started a proceeding under section 28(3) of the Income-tax ....

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....ity of being heard". It would clearly appear from the aforesaid two provisions that the penalty proceeding is altogether a different proceeding and starts after the assessment proceeding is closed. In the penalty proceeding itself the assessee is given a reasonable opportunity of being heard. Sub-section (4) of section 28 enacts that : "No prosecution for an offence against this Act shall be instituted in respect of the same facts on which a penalty has been imposed under this section." This sub-section gives a clear indication that penalties are placed on analogous footing with offences. There is a conflict of authorities as to the nature of these penalty proceeding and as to the party on whom the onus lies, to establish the....

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....ion, it should be remembered that in section 3 of the Evidence Act, there are three expressions, "proved", "disproved" and "not proved". In the assessment proceedings the assessee might have failed to prove his case that the questioned income is not his, but that will not prove the contrary, namely, that it has been established by the department that such income is concealed income. Different conclusions emerge when the onus is placed either on the assessee or on the department. The onus under section 28(1)(c) must be on the department to establish that the income had been concealed. Failure on the part of the assessee to prove his own case does not mean that the department succeeds in establishing its case that there was concealment of inc....