1990 (9) TMI 46

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....as "the Act), the Income-tax Appellate Tribunal, 'B' Bench, Patna, has referred the following question of law to this court for its opinion : "Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in cancelling the penalty imposed under section 271(1)(c) ? " The material facts giving rise to this reference, briefly, are as follows : The assessee was a....

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.... by deleting certain additions made by the Incometax Officer. The Income-tax Officer also issued a notice to the assessee to show cause why penalty be not imposed under section 271 (1) (c) of the Act and referred the matter to the Inspecting Assistant Commissioner under section 274(2) of the Act. The assessee did not show any cause and did not even appear before the Inspecting Assistant Commission....

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....he order of penalty. The Tribunal held that as no such material was on the record, the order of penalty was liable to be set aside. Aggrieved by the order passed by the Tribunal, the Revenue sought reference. As the application submitted by the Revenue in that behalf was rejected by the Tribunal, the Revenue made an application before this court under section 256(2) of the Act, which was allowe....

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....Court approved the decision of this court in CIT v. Nathulal Agarwala and Sons [1985] 153 ITR 292 [FB], where this court had held that the onus to discharge the presumption arising by virtue of the Explanation to section 271(1)(c) of the Act was on the assessee and it was for him to prove that the failure to return the correct income was not due to any fraud or any gross or wilful neglect on his p....