TaxTMI 
TaxTMI 
1992 (3) TMI 50
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....of section 271(1)(c) of the Income-tax Act independently of the provisions of the Explanation there below ? (2) Whether the finding of the Tribunal that since the total income of the assessee was determined on the basis of estimate made, it cannot be said that failure to return the correct income was on account of any fraud or any gross or wilful neglect on the part of the assessee and the assessee had discharged the burden which lay upon it under the Explanation is correct in law and sustainable from the material on record ? " A few facts necessary for the purpose of disposal of this case are as under : The assessee is carrying on the business of manufacturing diaries, account books, calendars, invitation cards, etc. For the asses....
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....ee had not thought it fit to file returns of income showing the correct income arrived at by adopting the manner adopted by the Income-tax Officer. This, according to the Income-tax Officer, was a clear indication that the assessee wanted to conceal his real income. Taking this view, be held that section 271(1)(c) was clearly attracted in this case and, in view of the Explanation to that section, the assessee must be deemed to have concealed the particulars of his income or furnished inaccurate particulars of his income. The assessee went in appeal to the Appellate Assistant Commissioner of Income-tax. The appeals for both the years were heard together. The assessee urged that the facts for the assessment years 1967-68 and 1968-69 being ....
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....etermined on the basis of estimate made, it cannot be said that failure to return the correct income was on account of any fraud or any gross or wilful neglect on the part of the assessee. In our opinions the assessee had discharged the burden which lay on it under the Explanation. Therefore, in any view of the matter, no penalty was leviable. " The Tribunal confirmed the order passed by the Appellate Assistant Commissioner and the appeals filed by the Department were dismissed. On being moved by the Department, the Tribunal has referred the two questions which are set out above. What is urged by learned counsel for the Revenue is that the Tribunal was wrong in holding that since the total income of the assessee was determined on the ....
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....t. Vilasben Hasmukhlal Shah [1991] 192 ITR 214 (Guj) and Rajaram and Co. v. CIT [1992] 193 ITR 614 (Guj). He also drew our attention to the Full Bench decision in Vishwakarma Industries v. CIT [1982] 135 ITR 652 (P & 11) and the decision in CIT v. Nathulal Agarwala and Sons [1985] 153 ITR 292 (Patna) [FB]. It is not necessary to refer to all these decisions, as the contention raised by the Revenue in support of which all these decisions have been cited is really misconceived. Though the order of the Tribunal is not happily worded, as it is not clearly stated as to how the assessee can be said to have discharged the burden arising out of the Explanation to section 271(1)(c), if the order is read as a whole, it becomes clear that the Tribunal....