Income Tax Appellate Tribunal - Ahmedabad
Patel Oil Mills vs Income-Tax Officer on 3 July, 1990
Equivalent citations: [1990]35ITD451(AHD)
ORDER
M.A.A. Khan, Judicial Member
1. This is an appeal by the assessee from the order of the CIT(A), Rajkot dated 8-10-1982 upholding the penalty of Rs. 55,417 levied Under Section 271(1)(c) of the Income-tax Act, 1961 ('the Act'). Facts relevant and sufficient to dispose of the present appeal may be stated as under.
2. The assessee is a registered firm engaged in the business of manufacturing groundnut oil by pressing ground nut seeds in its oil mill located at village Liliya Mota. It maintains its accounts on mercantile system and adopts Samvat Year as its previous year. The accounting period, relevant for assessment year 1973-74, which is under consideration, comprises of the period from 20th October, 1971 to 6th November, 1972 (S.Y. 2028).
3. On February 17, 1973, the officers of the Sales-tax Department raided the business premises of the assessee-firm and seized, inter alia, a note book, called Talaq book, seized article No. 3, in the relevant assessment order, from the possession of the assessee. On comparative study of the entries made in the said book with the account books maintained by the assessee it transpired that the assessee had not entered some of the purchases in the regular books maintained by it. The Sales-tax Officer made certain additions for the purpose of levy of sale-tax which the assessee firm challenged before the higher authorities.
4. The assessee-firm filed its return of income for the year under consideration on 28th May, 1974 showing its income at 'nil'. No account books had been submitted along with the return but in the statement of income filed along with the return the assessee had appended the following note in part III of the return :
PART III Sales-tax Department has on estimated basis increased purchases, sales details whereof are as shown herewith. Appeal has been filed in the Tribunal against such estimate. This fact is voluntarily mentioned here suo moto so that no penalty is levied holding that there is any concealment. The sales-tax liability may be deducted from any addition that may be made in this connection dated 25-5-1974.
S.Y. 2028 as per order of Sales-tax Office, dated 30-7-1973.
Sales Purchases
Oil 4,16,775 Groundnut 4,65,200
Khol 95,480 Tins 25,090
(Oil cake)
Fotri 1,060 Bardon 3,290
Crude 2,000
5,13,315 4,96,580
As detailed above sales and purchases were estimated and additional tax of Rs. 45,383.74 is shown to be due and payable. Against aforesaid assessment order appeal was filed.
As per order of Assistant Sales-tax Commissioner, Bhavnagar dated 29-3-1974 appeal was partly allowed and relief of Rs. 4454.64 has been granted, from the assessed tax:
Rs.
45,383.74 40,929.10 ___________ 4,454.64 ___________ Appeal has been filed against the above mentioned order in Gujarat Sales-tax Tribunal.
Dated : 25-5-1974.
Since the account books were reported to be lying with the sales-tax authorities, the ITO called for the same from those authorities. On the basis of his study of the material seized by the sales-tax authorities and the order passed by them as also on his own study of the material placed before him, the ITO estimated the investment in unaccounted purchases of groundnut seeds at Rs. 88,000. He estimated the suppressed sales at Rs. 2,76,583 rounded to Rs. 2,77,000 whereupon he calculated the profit at Rs. 18,836 at the rate of 6.8 per cent. He thus made an addition of Rs. 88,000 plus Rs. 18,836 totalling Rs. 1,06,836 as assessee's income from undisclosed sources.
5. In appeal, the AAC vide his order dated 18-2-1977, confirmed the above additions. However, in second appeal the Tribunal estimated the unaccounted investment in purchases of 22,000 kg. of ground-nut seeds as against 44,000 kg. adopted by the ITO and calculated the cost thereof at the rate of Rs. 1.80 per kg. as against the rate of Rs. 2 per kg. adopted by the ITO. The Tribunal thus confirmed addition of Rs. 39,600 as against Rs. 88,000 made by the ITO an account of investment in unaccounted purchases. The Tribunal did not disturb the estimated figures of suppressed sales at Rs. 2,76,583 but applied profit rate of 5 per cent as against 6.8 per cent adopted by the ITO and thus reduced the suppressed profit to Rs. 13,850 as against Rs. 18,836 adopted by the ITO.
6. It was in the above background that in the course of assessment proceedings the ITO had felt satisfied that the assessee had concealed the particular of income/furnished inaccurate particulars of its income to the extent of Rs. 55,417. He, therefore, initiated penalty proceedings Under Section 271(1)(c) of the Act and called upon the assessee to explain as to why penalty should not be levied upon it. By its reply dated 19-3-1979 the assessee mainly submitted that it had disclosed all the relevant facts relating to unaccounted for investment in the purchases and the suppressed sales in Part III of the return. It was submitted that the assessee had on its own given all the relevant details of its income in all bona fide and good faith and had also co-operated with the department during the course of assessment proceedings in the matter of computation of its income. It was further submitted that additions to the income had been made at the assessment proceedings mainly on the basis of the orders passed by the sales-tax authorities and no independent enquiries had been made by the ITO. Moreover the figures of unaccounted for purchases had remained fluctuated at different stages of proceedings either before the sales-tax authorities or before the authorities under the Act and that additions to the returned income had been made on the basis of estimated deemed income and, therefore, penalty should not be levied upon it under the circumstances. The ITO did not accept the explanation offered by the assessee and by his order dated 24-3-1979 levied penalty of Rs. 55,417 as stated above, which was confirmed in appeal by the learned CIT(A). Hence this appeal before us.
7. Mr. K.C. Patel, the learned counsel for the assessee-appellant urged in the first place that since the very basis of making addition to the returned income had changed, penalty Under Section 271(1)(c) should not have been levied in the present case. Mr. Patel pointed out that whereas the ITO had made unaccounted for purchases as the main basis of addition to the returned income, the Tribunal had not only substantially altered the figure of unaccounted for purchases but had also made the profits earned on suppressed sales as the basis of addition. In this behalf Mr. Patel relied upon the Gujarat High Court decision in the case of CIT v. Lakhdhir Lalji [1972] 85 ITR 77.
8. In reply, Mr. K.K. Bolia, the learned D.R. submitted that there had been no variation in the estimation of sales either at the stage of proceedings before the sales-tax authorities or before the income-tax authorities. Moreover there was no change of basis insofar as the question of levy of penalty Under Section 271(1)(c) in this case was concerned.
9. In our opinion the submission made by Mr. Bolia should carry weight. In the case of Lakhdhir Lalji (super) the ITO had issued notice for levy of penalty Under Section 271 (1 )(c) on the ground of concealment of income. However, the AAC in appeal held that there was no conceatmet of income dut only under valuation of stock. Taking note of AAC's order, the ITO levied penality Under Section 271(1)(c) on the ground that the assessee had deliberately furnished inaccurate particulars of income. It was on these facts that the High Court had held that penalty prooceedings had been commenced against the assessee on a particular footing viz. concealment of particulars of income but the final conclusion for levying the penalty was based on a different footing viz. on the footing of furnishing inaccurate particulars of income. The High Court observed that in the circumstances of the case it could not be said that the assessee had been given a reasonable opportunity of being heard before the order imposing the penalty was passed. It was further observed that the very basis for the penalty proceedings against assessee initated by the ITO had disappeared when the AAC held that there was no suppressior fo income hy the assessee. These are not the facts obtaining in the instant case. Herein it has not been urged that the ITO had issued the notice Under Section 274 of the Act on a gooting which was not adopted for the levy of penalty finally. Moreover additions to the total income of the assessee had been made at the assessment proceedings on account of unaccounted for investments in purchases and suppressed sales. It was on that basis that the addition made had been considered to be the concealed income of the assesse had issued notice on the ground of concealment of the particulars of income/furnishing inaccurate particulars of income. It is thus evident that the ITO had levied the penalty on the same basis upon which he had comrnenced the penalty proceedings.
10. It was next urged by Mr. Patel that additions to the returned income of the assessee had been made on account of deemed income Under Section 69 of the Act. He submitted that penalty Under Section 271(1)(c) should not be levied in respect of amount which is included to the total income of the assessee by virtue of Section 69 of the Act. In this behalf Mr. Patel relied upon the Karnataka High Court decision in the case of CIT v. Jewels Paradise [1975] 101 ITR 265 and Tribunal's decision in the cases of Drapo Electronics Corporation [IT Appeal No. 115(Ahd.)of 1972], Navjiwan Oil Mills, [IT Appeal No. 2077 (Ahd.) of 1976-77] and Ratilal Kalidas Amreli, [IT Appeal No. 274 (Ahd.) of 1977-78].
11. In reply Mr. Bolia first submitted that additions in the present case were not made Under Section 69 of the Act. He then submitted that even if it be assumed that additions to the returned income had been made Under Section 69 of the Act, then estimated income may very well make a good basis for levy of penalty Under Section 271 (1)(c). In this behalf Mr. Bolia relied upon the Gujarat High Court decision in the case of Addl. CIT v. Chandravilas Hotel [1987] 165. ITR 300.
12. In the case before the Karnataka High Court, cash seized in raid was included Under Section 69A in the income of the assessee for the financial year. In the course of penalty proceedings Under Section 271(1)(c)the question arose whether the amount added was income of the assessee of that financial year. The karnataka High Court held that the amount was included in the assessment because the raid happened to be within the financial year 1964-65 and merely on that account it did not follow that the amount represented the income of the previous year of the assessee for which is was bound to file the return and disclose the amount. It was in that context that the Karanataka High Court held that Section 271(1)(c) can be invoked if an assessee conceals an income which he was bound to disclose for the relevant assessment year and not in respect of an amount which is included by virtue of Section 69A in the assessment for the said assessment year. This case too is distinguishable on facts. In the instant case the raid had no doubt taken place on a date falling within the assessment year under consideration hut as is available on the study of the assessment order, the purchases recorded in the seized book were also found to have been made during the period falling within the assessment year in question.
13. In the case of Chandravilas Hotel (supra), the Gujarat High Court had taken the view that explanation to Section 271(1)(c) applies even to cases of best judgment assessment. The Hon'ble High Court has observed that addition made to the total income of the assessee on account of the book result disclosed by the assessee not being amenable to verification was not the sole ground or basis on which penalty was levied by the IAC. In that case the High Court further observed that the past history of the assessee's persistence in maintaining the books of account in the same manner though they were found unreliable was one of the factors which had gone into consideration in levying penalty. This case, therefore, comes to support the view that penalty under Section 271(1)(c) may be levied even to cases of best judgment assessment where the books of account are rejected and the income of the assessee is estimated by application of Section 145(2) of the Act.
14. The view expressed by the Gujarat High Court in the case of Chandravilas Hotel (supra) seems to have been favourably explained by the Supreme Court in the case of Chuharmal v. CIT [1988] 172 ITR 250/38 Taxman 190. In that case the customs authorities had seized a large number of wrist watches of foreign make from the bed room of the assessee and the assessee had failed to make any statement in respect thereto. The investment made in the purchase of wrist watches was considered to be deemed income of the assessee under Section 69-A of the Act. It was on these facts that the Supreme Court held that a legitimate inference could be drawn that the petitioner had income which he had invested in purchasing the wrist watches and, therefore, he could be held to be the owner of the wrist watches and, their value could be deemed to be his income by virtue of Section 69-A of the Act. It was a case of penalty under Section 271(1)(c) and the explanation under that provision applied to the case. The Supreme Court finally confirmed the levy of penalty under that provision.
15. Thus it would be incorrect to say that penalty under Section 271(1)(c) cannot be levied in the cases where additions to the total income of an assessee has been made by virtue of Sections, 68, 69 or 69A of the Act.
16. At this stage Mr. Patel referred to the Karnataka High Court decision in the case of Jewel Paradise (supra) and the Allahabad High Court decision in the case of Banaras Chemical Factory v. CIT [1977] 108 ITR 96 as also to the decisions of the Tribunal in the cases cited supra wherein the Gujarat High Court decision in the case of Lakhdhir Lalji (supra) and the Karnataka High Court decision mentioned above were relied upon and submitted that since the said decisions were not challenged by revenue before higher authorities, the ratio laid down therein on the point that penalty under Section 271(1)(c) should not be levied in the cases of estimated incomes requires to be followed.
17. We have already referred to the Supreme Court decision in the case of Chuharmal (supra) wherein penalty levied under Section 271(1)(c) in respect of additions made by virtue of Section 69A had been upheld. We may observe that the decision in the case of Chuharmal (supra) was rendered by the Supreme Court on May 2, 1988 whereas the cases relied upon by Mr. Patel had been decided much earlier. We, therefore, hold that penalty levied in the instant case cannot be cancelled on the sole ground that the income of the assessee had been estimated and cases of estimated income did not attract levy of penalty under Section 271(1)(c).
18. It was next urged by Mr. Patel that in the instant case the ITO had levied penalty merely on the basis of the ordes passed by the sales-tax authorities and no independent enquiry into the justification of levy of penalty had been made. In reply Mr. Bolia submitted that in the view of the fact that making pnrchases of groundnut seeds and selling groundnut oil had not been disputed by the assessee and in fact the assessee had agreed to making additions to its total income during the course of assessment proceedings, on independentenquiries were required to be conducted in the penalty proceedings. At the samp time Mr Bolia asserted that in the instant case independent enquiries had been conducted and, therefore, the levy of penalty cannot be cancelled on that ground.
19. In our opinion, the argument that no independent enquiry had been conducted by the ITO before levying penalty is not acceptable. Equally, we do not accept the proposition that in the facts and circumstances of the case since the assessee had agreed to the making of certain additions to its total income no independent enquiry before imposing penalty under Section 271(1)(c) was required to be made. The orders passed by the sales-tax authorities as also the orders passed by the income-tax authorities in the course of assessment proceedings simply made relevant evidence in the penalty proceedings. Before levying penalty under Section 271(1)(c) the ITO was fully justified in taking those pieces of relevant evidence into consideration. On a perusal of the penalty order, we feel satisfied that before levying the penalty in the instant case the ITO had applied his mind to all the material points and at the same had also taken into consideration the orders passed by the sales-tax athorities as also those passed by the income-tax authorities in the course of assessment proceedings.
20. Insofar as the argument of Mr. Bolia that since the assessee had agreed to the making of certain additions to its total income there was no necessity of conducting independent enquiry (though the ITO had made such enquiries in the instant case, as we have held above, before levying penalty) is concerned, we find it unacceptable. It is trite law that the statement of a person should be read as a whole and not in part. The admission made by the assessee before the ITO during the course of assessment proceedings regarding the addition to be made to its total income on account of investment in purchases of groundnut seeds and/or profits earned on suppressed sales of groundnut oil is required to be read in the light of the statement made by the assessee at the earliest opportunity in Part III of the statement of income filed along with the return. Therein the assessee had clearly mentioned that facts relating to the proceedings before the sales-tax department were being voluntarily disclosed so that no penalty be levied holding that there was concealment of any income by the assessee. The assessee had further stated that the sales-tax liability may be deducted from any addition that may be made in the assessment proceedings. Thus the admission made by the assessee was not absolute and unqualified. Therefore, it would be illogical and unreasonable to say, in the facts and circumstances of this case, that since the assessee had accepted the addition made, it cannot object to the levy of penalty under Section 271(1)(c) of the Act. We reject the argument of Mr. Bolia.
21. Finally Mr. Patel submitted that the facts and circumstances of the case, the bonafides of the assessee, the manner the assessee behaved and conducted itself not only at the time of filing the return but also during the course of assessment proceedings clearly exhibit that the concealed income had not resulted from any fraud, gross or wilful neglect on the part of the assessee. It was thus submitted that the facts of the case do not merit the levy of any penalty under Section 271 (1)(c). This argument of Mr. Patel was opposed to by Mr. Bolia with the submissions that the explanation to Section 271(1)(c) applies to the case and once the said explanation applies to the facts of a given case, it becomes for the assessee to prove that the concealed income had not resulted from any fraud, gross or wilful neglect on the part of the assessee. According to Mr. Bolia the assessee in this case had miserably failed to discharge the burden that had been placed by the explanation upon it. In this behalf Mr. Bolia heavily relied upon the cases of Banaras Taxtorium v. CIT [1988] 169 ITR 782/36 Taxman 79 (All.); CIT v. M.N. Chatterjee [1988] 170 ITR 87 (Pat.); Chuharmal (supra), CIT v. T.K. Manicka Gounder [1989] 178 ITR 274/43 Taxman 208 (Mad.) and CIT v. Rohtak Distt. Transport Co-operative Ltd. [1989] 179 ITR 556/45 Taxman 346 (Punj. & liar.)
22. In reply Mr. Patel again reiterated that not only the initial burden to prove the guilt of an assessee under Section 271 (1)(c) remains on revenue, which the revenue had failed to discharge in this case, but also that the assessee had fully discharged the burden that had been placed on it by explanation to Section 271(1)(c). In this behalf Mr. Patel relied upon the decisions in the cases of D.M. Manasvi v. CIT [1972] 86 ITR 557 (SC), J.S. Parkar v. V.B. Palekar [1974] 94 ITR 616 (Bom.), Jewel Paradise (supra), Banaras Chemical Factory (supra) and CIT v. Vinaychand Harilal [1979] 120 ITR 752 (Guj.). During the course of their arguments the learned counsel for the parties also referred to the cases of Taiyabji Lukmanji v. CIT [1981] 131 ITR 643 (Guj.) and CIT v. Suleman Abdul Sattar [1983] 139 ITR 8 (Guj.).
23. After hearing the learned counsels for the parties we are of the considered view that the arguments advanced by Mr. Patel being quite convincing the facts of the instant case do not merit any levy of penalty under Section 271(1)(c).
24. It is not disputed in this case that since the difference between the returned income and the assessed income exceeded the permissible limit of 20%, explanation to Section 271(1)(c) was clearly applicable. There is also no dispute to the proposition that where the difference between the returned income and the assessed income exceeds the permissible limit the explanation stands attracted automatically as was held by the Allahabad High court in the case of Banaras Textorium (supra). The question, however, is as to what is the effect of the application of the explanation to a given case on the onus that is initially there on the parties under the main Section 271 (1)(c) of the Act. This pertinent question was considered at length by the Full Bench of the Punjab & Haryana High Court in the case of Vishwakarma Industries v. CIT [1982] 135 ITR 652, where it was held that once the explanation is found applicable to the case of an assessee, it straightaway raises three legal presumptions viz. (i) that the amount of the assessed income is the correct income and it is in fact the income of the assessee himself; (ii) that the failure of the assessee to return the correct assessed income was due to fraud; or (iii) that the failure of the assessee to return the correct assessed income was due to gross or wilful neglect on his part. But it had been clearly emphasised in that case that those were the presumptions and became a rule of evidence but all presumptions raised were not conclusive presumptions and were rebuttable. A similar view had been expressed by the full bench of the Andhra Pradesh High Court in the case of CIT v. H. Abdul Bakshi & Bros. [1986] 160 ITR 94 (FB). The Patna High Court had also expressed a similar view in its Full Bench decision in the case of CIT v. Nathulal Agarwala & Sons [1985] 153 TTR 292/22 Taxman 199. The views expressed by these High Courts in their full bench decisions have fallen for consideration of the Supreme Court in the case of CIT v. Mussadilal Ram Bharose [1987] 165 ITR14 where it was held that where the total income returned by the assessee is less than 80% of the total income assessed, the explanation to Section 271(1)(c)ofthe IT Act, 1961 shifts the burden to the assessee to show that the difference was not owing to fraud or gross or wilful neglect on his part. This onus is rebuttable. If, in an appropriate case, the Tribunal or the fact finding body is satisfied on relevant and cogent material on record and draws an inference thereupon that the assessee was not guilty of gross or wilful neglect or fraud, then, in such a case, the assessee cannot come within the mischief of the Section and suffer penalty. The same view was reiterated by the Supreme Court in its later decision in the case of Chuharmal (supra). The decision of the Madras High Court in the case of T.K. Manicka Gounder (supra) and of the Punjab & Haryana High Court in the case of Rohtak District Transport Co-operative Ltd. (supra), as have been cited by the learned D.R. have followed the same view.
25. On a study of the decisions cited at bar it becomes crystal clear that with the authoritative pronouncement by the Supreme Court in its decisions in the cases of Mussadilal Ram Bharose (supra) and Chuharmal (supra) it has become the settled position of law that in a case to which the explanation to Section 271(1 )(c) applies the burden to prove that the concealed income had not resulted from any fraud or gross or wilful neglect on his part lies on the assessee. It may be noted that the initial burden to prove the guilt of an assessee under Section 271(1)(c) basically lies upon the department but by virtue of the explanation that onus shifts to the assessee to prove the above fact. In other words the revenue may be said to have discharged the initial burden that was there on it to prima facie prove the guilt of the accused by showing that the difference between the returned income and the assessed income exceeding the permissible limit attracted the explanation. Once the initial burden so shifts from the revenue to the assessee by virtue of the application of the explanation it is now for the assessee to prove the above fact. But if the assessee satisfactorily proves that the concealed income had not resulted from any fraud or gross or wilful neglect on his part then he could not be burdened with the levy of penalty under Section 271(1)(c).
26. Now coming to the merits of the case, we find that no doubt the assessee had returned its income at nil but in the statement of income filed along with the return of income the assessee had clearly disclosed in Part HI that its purchases and sales have been increased by the sale-stax department. The assessee had also given the details of the sales and purchases in the said written note. It had also been communicated to the ITO that the matter was still pending with the sales-tax authorities. As stated above, the assessee had further submitted that in case of making an addition to its total income on the basis of facts found by the sales-tax department, deduction on account of sales-tax liability be given to it. All these facts had been voluntarily disclosed by the assessee with the prayer that no penalty be levied upon it. It is gathered from the assessment order that along with the return, the account books had not been filed by the assessee. Therefore, the ITO had to call for the account books from the sales-tax department. The question arises whether the note appended by the assessee in the statement of income filed along with the return of income may be considered as explaining that the concealed income had not resulted from any fraud or gross or wilful neglect on the part of the assessee.
27. It may be recalled that the account books had been seized by the sales-tax department in raid held on 17-2-1973. The return had been filed on 28-5-1974. The offence contemplated by Section 271(1)(c) may be said to have been committed by the assessee when he conceals the particulars of his income or furnishes inaccrurate particulars of such income while filing his return under the Act. It is true that the intention of concealing the particulars of his income is exhibited by an assessee when he does not enter correct purchases or sales in his account books. In our opinion such an intention or conduct of an assessee at the time of writing his books may be punishable under Section 276-C but not under Section 271( l)(c). What is punishable under Section 271(1)(c) is the act of an assessee of concealing the particulars of his income or furnishing inaccruate particulars of his income at the time of filing the return. For upto the time of filing the return an assessee may keep himself open to self-correction. There maybe a case where an assessee might have not recorded the correct particulars of his income in the account books but who, before filing the return or at the time of filing the return may reconsider his past action and may come with the disclosure of the particulars of his correct income and may declare that at the time when he files the return. There may be another case where, after filing the return wherein the assessee has concealed the particulars of his income, has furnished inaccurate particulars of his income, he may voluntarily come forward and file a revised return disclosing the correct particulars of his income before detection of concealed income by the ITO. What we want to stress is that it is not the intention or act of an assessee at the time of writing the books which is punishable under Section 271(1)(c)but his act of concealing the particulars of his income or furnishing inaccurate particulars of such income at the time of filing his return which is punishable under Section 271(1)(c). His wilful attempt to evade tax by making false entries or statements in the books or wilfully omitting to make relevant entries or statement in the books may be punishable under Section 276-C of the Act and may be quite relevant in penalty proceedings under Section 271(1)(c). But if an assessee, by or at the time of filing the return, has rectified his above mentioned acts of commission or omission, it would not be proper to levy penalty upon him.
28. Judged in the light of the discussion made above, we are led to hold the opinion that in the instant case the assessee had clearly mentioned in the note in Part III of the return that the matter of increased purchases and sales or, in other words, investments in un-recorded purchases and profits from suppressed sales in its case was pending before the sales-tax authorities. The assessee had also mentioned the relevant figures of the purchases and sales as assessed by the sales-tax authorities. Moreover, the assessee had further submitted that it was disclosing all those facts suo moto and voluntarily with the prayer that it would not be proceeded against for levy of any penalty. All these facts must be read as disclosure of the relevant particulars of assessee's income in the facts and circmstances of this case. Mr. Patel invited our attention to the relevant part of the return wherein an assessee has been assured immunity from penalty under Section 271(1)(c) provided he mentions the full particulars of any income which he may consider not liable to tax in his hands. The case of the assessee in the instant case was, in our opinion, on better footing. Herein the assessee had itself submitted that additions may be made on the basis of facts found by the sales-tax authorities with regard to its purchases and sales and that due deduction for sales-tax liability be given to it. The only objection that Part III of the return was not meant for such a purpose hardly carries weight with us. In the matter of penal liabilities the substance and not the form should dictate decisions.
29. To sum up, after having considered the facts of the instant case and the material brought on our record, we are clearly of the opinion that the assessee had satisfactorily proved that the concealed income had not resulted from any fraud or gross or wilful neglect on its part. Thus, the onus that stood shifted to the assessee by virtue of application of the explanation to Section 271(1)(c) had been, in our considered opinion, satisfactorily discharged by the assessee. Under these circumstances, therefore, the penalty imposed is not sustainable.
30. In the result, the order under appeal is set aside, the penalty levied cancelled and the appeal allowed.