COMMISSIONER OF INCOME TAX Vs. TEZPUR ROLLER AND FLOUR MILLS

JUDGEMENT

(1.) THIS is an application under Section 256(2) of the Income-tax Act, 1961, hereinafter referred to as "the Act".

(2.) THE Commissioner of Income-tax has filed this application, which arises out of the judgment and order of the Income-tax Appellate Tribunal, Gauhati Bench, dated December 7, 1972, in I.T.A. No. 163 of 1970-71.

(3.) THE assessee filed appeals before the Income-tax Appellate Tribunal both against the order of the Appellate Assistant Commissioner confirming the addition of Rs. 25,000, as well as the order of the Inspecting Assistant Commissioner levying a penalty of Rs. 20,000. Both the appeals were heard together and by a common order the Tribunal held that the assessee had failed to prove that the credit was genuine. That it was the duty of the assessee to establish that the credit was genuine and the assessee having failed therein, the Tribunal was of the opinion that the onus of proving the genuineness of the credit was not discharged by the assessee and, therefore, the assessment by adding a sum of Rs. 25,000 was upheld. Regarding the penalty, the Tribunal found that the department has not been able to establish that the assessee had concealed the income. THE Tribunal further observed that merely because the explanation given by the assessee was not acceptable and the evidence given by it was not enough to prove the genuineness of the credit, it could not be held that a case of concealment was made out. THE Tribunal also found that there was no evidence led by the department to prove that the assessee had concealed its income.