Law:

Section:

Section 271(1)(c) of the Income-tax Act, 1961 - Penalty - For concealment of income - Assessment year 1962-63 - Penalty under section 271(1)(c) was levied on assessee on 8-3-1968 in regard to concealment of cash credit and in respect of unexplained investments - Tribunal, however, cancelled said penalty on ground that burden was on revenue to prove concealment of income and same had not been discharged - Whether onus under act, at relevant time, was on assessee to establish that suppression was not deliberate - Held, yes - Whether, therefore, case was be remanded to Tribunal to hear again keeping correct law in view - Held, yes FACTS The assessee's assessment for the relevant assessment year was completed on 8-3-1968 under section 147(a) by making additions in respect of cash credits and unexplained investment on house construction. On the same day, the IAC levied penalty under section 271(1)(c). The Tribunal deleted the entire penalty levied by the IAC on ground that the onus was on the revenue and from the mere fact that the ultimate income assessed was more than the income originally assessed an inference could not be drawn that the suppression was fraudulent. On reference : HELD The onus was under the Act on the assessee to establish that the suppression was not deliberate. This onus, doubtless, was not, as in a criminal case, to be established beyond reasonable doubt, but was to be in accordance with the preponderance of probabilities as applicable to a civil suit. Thus, the penalty could not be deleted on the footing that it was not exigible. The Tribunal is the final Court of fact. It did not examine the facts keeping the correct law in view. Even if the onus was on the assessee, the onus may be discharged if the explanation furnished by the assessee was accepted or if the case of the assessee was established from other materials available on record. This was a fit case which the Tribunal should hear again keeping the correct law in view. Note: Case remanded back. JUDGMENT G.K. Misra, CJ.-The question on which statement of fact was called for by this court was as follows: "Whether, in the facts and circumstances of the case, the levy of penalty could be…

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