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1. This is a reference under Section 256(1) of the I.T. Act, 1961. The question before us is as follows :

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee could not be deemed to have concealed the particulars of its income or furnished inaccurate particulars thereof within the meaning of the Explanation to Section 271(2)(c) of the Income-tax Act, 1961, and, on that view, cancelling the penalty order under Section 271(1)(c)?"

2. The statement of the case relates to the assessment year 1964-65, the relevant accounting year ending on December 31, 1963. In the course of of the assessment proceedings the ITO found that there was a cash credit of Rs. 50,000. The assessee's case was that it was a loan from Berlia Cloth Stores which belonged to one Ramchandra Berlia. The I.T.O. was not satisfied with the genuineness of the loan and issued a summons under Section 131 on Shri Berlia and, as he was out of Calcutta, his employee, Shri Masudilal Agarwalla, gave evidence before the ITO.

3. The evidence of Shri Masudilal Agarwalla is as follows : He was the sole employee of Mr. Berlia ; his salary was Rs. 150 per month ; he and Mr. Berlia lived in that shop; no books were maintained by the shop ; Mr. Berlia was assessed to income-tax on estimate ; besides the said shop, Mr. Berila had no other source of income at Calcutta nor had he any other asset at Calcutta ; and the alleged loan was not given through him nor he knew anything about it.

4. Apart from the aforesaid evidence of Shri Masudilal Agarwalla, it was found by the ITO that for the assessment year 1962-63 the income of Mr. Berlia was returned at Rs. 1,500 and it was assessed under Section 143(3) of the Act at Rs. 5,500, for the assessment year 1963-64, the income was returned at Rs. 1,800 and it was assessed at Rs. 5,800 under the aforesaid Section and for the assessment year 1964-65 the income was returned at Rs. 4,500 and it was assessed at Rs. 10,000 under Section 144. The assessment records of Shri Berlia also revealed that he did not maintain any books of account and had no banking account.

5. In view of all the aforesaid facts, the ITO was not satisfied with the creditworthiness of Mr. Berlia and held that the loan was not genuine. He accordingly added Rs. 50,000 as the assessee's income from undisclosed sources. The assessee did not file any appeal from the assessment order.

6. As the ITO was satisfied in the course of the assessment proceedings that the assessee has deliberately filed an incorrect return of income and has also concealed its income, he initiated the penalty proceedings and referred it to the IAC who, after hearing the assessee and considering the materials on the record held that the loan was not genuine and the aforesaid amount was the assessee's concealed income from undisclosed sources. He also held that the assessee had deliberately filed an incorrect return and accordingly he imposed a penalty of Rs. 38,099.

9. Mr. N. K. Poddar, learned advocate for the assessee, argues before us that the case of the CIT v. Anwar Ali , relied on by the Tribunal, still holds the field. He urges that the assessee cannot establish a negative. He submits that fraud, gross or wilful neglect cannot be presumed. He also argues that the identity of Shri Berlia was established by the assessee and the confirmatory letter issued by Shri Berlia was sufficient to discharge the onus that lay on the assessee under the aforesaid Explanation.