1991 (4) TMI 459

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.... legally covered by the provisions of the old 'Explanation' to s. 271(1)(c) which remained operative up to 31st March, 1976. 2. Whether the Tribunal was right in rejecting the contention of the assessed that the CIT(A) had over-stepped his jurisdiction in changing over from the new Explanation 1(A)' to the old Explanation' appended to s. 271(1)(c) of the IT Act ? 3. Whether the Tribunal was justified on facts and in law in rejecting the plea of the assessed that it had created doubt in its favor by pointing to the facts on record and had thereby discharged the initial onus cast on it by the 'Explanation' to s. 271(1)(c), thus consequently becoming not liable to penalty under s. 271(1)(c) ? ....

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....her the Tribunal was legally right in not accepting the plea of the assessed that the jurisdiction to impose penalty under s. 271(1)(c) in this case for the asst. yr. 1975-76 lay with the IAC and not with the ITO and the penalty order passed by the ITO was, therefore, quashable being without jurisdiction ? The question involved is with regard to levy of penalty. In the order passed by the Tribunal s. 256(1), it has been observed as under : Question Nos. 1 and 2 as framed, were discussed in detail by the Tribunal in para 7 while deciding the appeal. The Tribunal pointed out that at the time of completing assessment the ITO initiated penalty proceedings under s. 271(1)(c) of the Act, 1961. Simply because the ITO in the body ....

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....t was suggested that the Tribunal did not give any finding that the disputed addition was income of the assessed in the year of account. On this point, on facts there was a positive finding of the Tribunal that sum of Rs. 95,000 was income of the assessed in the year of account. The Tribunal further held that the theory of advancing the loan was not genuine. This point was also discussed by the Tribunal in its order in detail. 12. In question No. 6 it was suggested that on account of deeming provision penalty under s. 271(1)(c) was not attracted. The Tribunal on facts found that there was really unproved cash credit. The Tribunal further held that theory of advancing the loan was baseless and in reality the loan was never advanced.....