COMMISSIONER OF INCOME-TAX VS C.R. NIRANJAN, 1992 PTD-MADRAS-HIGH-COURT-INDIA 845 (1990)

(a) Income-tax---

----Penalty---Concealment of income---Computation of penalty---Loss claimed by assessee---Loss not disallowed and amount not added back to income of assessee---Loss cannot be taken into account in computing penalty.

Clause (iii) of section 271(1) of the Indian Income Tax Act, 1961, uses the words "amount of income". The word "income" has been defined under section 2(24) of the Act. It is an inclusive definition and it takes into its fold not only the real income, but also such items which are not incomes in the natural sense of the word. In section 4 which is the charging section, it is now there stated that income includes loss. It is also significant to note that, wherever it is necessary to consider loss as income, the Act specifically states so, as can be seen from Explanation 2 to section 64. On the other hand, in sections 271(1)(c) and 271(1)(iii), it is not stated anywhere that income includes loss.

The assessees returned a loss of Rs.1,14,330 for the assessment year 1969-70. The Income-tax Officer determined the income from business as "nil". Thereafter, the assessee filed an appeal and the Appellate Assistant Commissioner set aside the assessment. The Income-tax Officer then examined the books of the assessee, rejected them and estimated its income. The Income-tax Officer also added some cash credits, but finally the Tribunal sustained only a sum of Rs.29,000 as unexplained credits. Penalty was also levied under section 271(1)(c) of the Act. The Tribunal held that the Inspecting Assistant Commissioner was -not correct in levying penalty on the loss. The Tribunal also held that the sum of Rs.29,000 could not be treated as concealed income. On a reference:

Held, (i) that the Income-tax Officer had estimated the income but, while determining the income, the loss claimed by the assesee had not been disallowed and added back. The Inspecting Assistant Commissioner, in the penalty proceedings, had also not given any finding to the effect that the assessee had furnished inaccurate particulars regarding the current loss which had been claimed. Hence, the Tribunal was correct in holding that, in computing the penalty, the loss could not be taken into account;

(ii) that the Income-tax Officer rejected the account books and estimated the business income. But, for the purpose of making certain additions, the Income-tax Officer again retied on the account books. One such addition made by the Income-tax Officer was with regard to unexplained cash credit. On appeal, the Tribunal accepted the explanation offered by the assessee and deleted a portion of the so-called unexplained cash credit and sustained an addition of Rs.29,000. The fact remained that the assessee had furnished books of account. The assessee's accountant and cashier had also been examined. Therefore, the assessee had discharged the initial burden of proving that there had been no concealment of income. Thereafter, the Department had not brought any material to show that the assessee had concealed or furnished inaccurate particulars with regard to the cash credit. The amount of Rs.29,000 could not be treated as concealed income of the assessee.

Cement Distributors Pvt. Ltd. v. C.I.T. (1966) 60 ITR 586 (Mad.); C.I.T. v. Bala I.M. Rao (1989) 177 ITR 114 (Mad.); C.I.T. v. Gotla (J.H.) (1985) 156 ITR 323 (SC); C.I.T. v. Harprasad & Co. P, Ltd. (1975) 99 ITR 118 (SC); C.I.T. v. India Sea Foods (1976) 105 ITR 708 (Ker.); C.I.T. v. Jaora Oil Mill (1981) 129 ITR 423 (MP); C.I.T. v. Manicka Grounder (T.K.) (1989) 178 ITR 274 (Mad.)and Radhakrishniah (M.) v. C.I.T. (1984) 147 ITR 133 (Mad.) ref.

(b) Income-tax---

----Penalty---Concealment of income---Burden of proof ---Assessee placing primary facts to prove that there had been no concealment---Burden of proof discharged---No evidence adduced by Revenue that there had been concealment---Amount representing unexplained credit cannot be treated as concealed income for levying penalty.

G.V. Rajan for the Commissioner.

P.P.S. Janardhanaraja for the Assessee.

JUDGMENT

THANIKKACHALAM, J.---In compliance with the directions under section 256(2) of the Income Tax Act, 1901 (hereinafter referred to as the "Act"), in T.C.P. No.232 of 1976, dated November 2, 1976, the 'Tribunal referred the following questions for our opinion:

"(1) Whether, on the facts and in the circumstances of the case and having regard to the provisions of section 271(1)(c) of the Income Tax Act, 1961 read with the Explanation thereto, the Appellate Tribunal was right in reducing the penalty from Rs.2,53,351 to Rs.45,737 on the ground that the loss returned by the assessee should not be added to the income finally assessed for the purpose of levy of penalty?

(2) Whether, on the facts and in the circumstances of this case, the Appellate Tribunal had materials to hold that the addition of Rs.29,000 representing unexplained credit should not be treated as the concealed income of the assessee?"

The assessee is an individual doing contract business. The previous year relevant to the assessment year 1909-70 ended on March 31, 1969. Originally, the assessee filed a return with a loss of Rs.1,14,330. The Income-?tax Officer, after discussing with the assessee's representative, determined the income as "nil" from the business activity and brought to tax a sum of Rs.5,110 being the share income from a firm in which the assessee was a partner.' Thereafter, the assessee filed an appeal against the disallowance of the loss and the Appellate Assistant Commissioner set aside the assessment and directed the Income-tax Officer to redo the same. That assessment was made on May 31, 1971. During the course of examination, of the accounts, the Income-tax Officer found that the books contained many defects such as erasures, over writings and interpolations. The Income-tax Officer examined the assessee and also the cashier and the accountant. On the basis of the evidence collected, the Income-tax Officer came to the conclusion that the books were manipulated and hence he rejected the account books and estimated the income from contract business at Rs.34,157 by applying the net profit rate of 7% on the total receipts of the year amounting to Rs.4,87,959. The Income-tax Officer also added some cash credits, but finally the Tribunal sustained only a sum of Rs.29,000 as "unexplained cash credit" in the assessee's own account. There were also certain other credits in the name of Messrs Glassware & Co. to the extent of Rs.11,580 and this was sustained by the Appellate Tribunal. For these various additions, the Income-tax Officer initiated penalty proceedings under section 271(1)(c) and referred the matter to the Inspecting Assistant Commissioner of Income-tax. The Inspecting Assistant Commissioner, after considering the written representation submitted by the assessee, came to the conclusion that the assessee had deliberately manipulated his accounts and furnished inaccurate particulars with the obvious intention to conceal the income. Accordingly, relying on the Explanation to section 271(1)(c) of the Act, the Inspecting Assistant Commissioner held that the maximum penalty leviable works out to gs.5,06,702. Considering, the circumstances, ultimately, he levied the minimum penalty of Rs.2,53,351 under section 271(1)(c) of the Act. At that, time, the order of the Tribunal was not available to him and hence the quantum was determined with reference to the appellate order of the Appellate Assistant Commissioner of Income-tax.

Aggrieved, the assessee riled an appeal before the Appellate Tribunal. The Tribunal, on considering the facts appearing in this case, ultimately held that the penalty under section 271(1)(c) read with the Explanation is exigible in the case of the assessee. While considering the quantum of penalty, the Tribunal pointed out that the Inspecting Assistant Commissioner was not correct in levying penalty under section 271(1) (c) on the loss. Therefore, the Tribunal reduced the penalty from Rs.2,53,351 to Rs.45.737. With regard to the sum of Rs.29,000, the Tribunal further held that it cannot be taken as concealed income, because even though the Explanation is applicable for determining the exact quantum of concealed income, it has to be shown that the credit did represent an income receipt which was concealed. According to the Tribunal, the addition of Rs.29,000 was sustained on the basis that the assessee's contention was untenable and it does not lead to the conclusion that it was income which was concealed. Therefore, the Tribunal held that this sum cannot be taken as concealed income for the purpose of levy of penalty.

The first question referred to us relates to the reduction of the penalty under section 271(1)(e) of the Act from Rs.2,53,351 to Rs.45,737 on the ground that the loss returned by the assessee should not be added to the income finally assessed for the purpose of levy of penalty. The second question relates to Rs.29,000 which was held by the Tribunal as an income not concealed by the assessee.

While making his submission, learned standing counsel, with regard to question No.(1), contended that income includes loss, since the loss is also a negative income. Therefore, according to learned standing counsel, furnishing inaccurate particulars with regard to loss would also attract penalty under section 271(1)(c) of the Act. In order to support this, contention, learned standing counsel for the Department drew our attention to a passage occurring at page 1205 in Volume 1 of Law and Practice of Income-tax by Kanga and Palkhivala. So also learned standing counsel brought to our notice a passage occurring at page 4090 in Volume V of Sampath Iyengar's Law of Income-tax. Our attention was also drawn to a circular issued by the Central Board of Direct Taxes in this regard. In order to support his contention, learned standing counsel also relied upon certain decisions. According to learned standing counsel, the assessed income was arrived at after taking into account the loss returned by the assessee and after set off of the loss. Hence, it was submitted that there is no need to reduce the quantum of penalty determined by the Inspecting Assistant Commissioner.

On the other hand, learned counsel appearing for the assessee submitted that the current loss was not considered and determined in the assessment proceedings and, therefore, while levying penalty under section 271(1)(c) of the Act in the case of the assessee, the loss cannot be added to the assessed income. Further, learned counsel pointed out that neither the Department nor the Tribunal has given a finding to the effect that the assessee furnished any inaccurate particulars or concealed any particulars, in so far as the loss is concerend. According to learned counsel "income" occurring in section 277(1)(c) would mean a positive income and not a negative income like loss. Learned counsel further submitted that wherever it is necessary to, consider, the loss as income, the Act specifically stated so. For instance, in Explanation 2 to section 64 of the Income Tax Act, 1961, it is clearly stated that income includes, loss also. Therefore; learned counsel pointed out that under section 271(1)(c) of the Act nowhere is it stated that the- word "income" Includes also loss. Learned counsel further submitted that where two interpretations are possible, that which is in favour of the assessee has to be followed. It was, therefore, pleaded that the penalty levied on the loss of Rs.1,14,330 is unsustainable and the Tribunal was correct in reducing the penalty.

We have heard the rival submissions. The fact remains that while confirming the penalty levied under section 271(1)(c) of the Act read with the Explanation, the Tribunal reduced the penalty from Rs.2,53,351 to Rs.45,737 on the ground that the loss returned by the assessee should not be added to the income finally assessed for the purpose of levying, penalty. According to the Revenue, loss should be considered as income and penalty is exigible even on loss also. The submission of the assessee was that loss is not positive income and, therefore, it should not be considered for the purpose of levying penalty under section 271(1)(c) of the Act. For the assessment year 1969-70, the assessee who is an individual filed his return, claiming a loss of Rs.1,14,330. After examining the books of accounts, the Income-tax Officer rejected the same on the ground that the account books were manipulated and, therefore, according to the Income-tax Officer, they are not reliable. Thereafter, the Income-tax Officer estimated his income from contract business by applying the net profit rate of 7% on the total business receipts of the year. He also added some cash credits. Finally, the Income-tax Officer completed the assessment as under:

As can be seen from the assessment order extracted in the order passed by the Inspecting Assistant Commissioner, it is clear that the Income-?tax Officer has not given any finding to the effect that the amount of loss claimed by the assessee was disallowed and the same was added back to the estimated income. It may be that the Income-tax Officer would have considered the loss and estimated the income. If that is so, the Inspecting Assistant Commissioner in the penalty proceedings cannot make further addition viz., the loss to the estimated income. The Income-tax Officer allowed only the carried forward loss of Rs.5,125. Thus, there is no material on record to show that the current loss claimed by the assessee was dealt with in the assessment order. Even in the penalty order the Inspecting Assistant Commissioner has not given any finding to the effect that the assessee furnished inaccurate particulars with regard to current loss claimed. But, according to the Inspecting Assistant Commissioner, the Explanation to section 271(1)(c) applies to the facts of this case. These are the facts on which the penalty was levied.

In the matter of deciding the question whether income includes loss also, several decisions were brought to our notice. One such decision was reported in the case of C.I.T. v. Harprasad & Co. P. Ltd. (1975) 99 ITR 118 (SC). According to the facts appearing in this case, during the accounting period ending April 30, 1954, relevant to the assessment year 1955-56, the assessee sold certain shares at a loss of Rs.28,662, which it claimed as a revenue loss. While deciding this issue in the light of the provisions contained in sections 2(6-C)(vi), (15), 3, 4(1), 6(vi), 12-B, 22(2-A), 24(1), (2), (2-A), (2-B) of the Indian Income-tax Act, 1922, the Supreme Court held as under (at p.124):

"Section 2(6-C) provides that `income' includes (among other things).

(vi) any capital gain chargeable under section 12-B'.

From the charging provisions of the Act, it is discernible that the words `income' or `profits and gains' should be understood as including losses also, so that, in one sense, `profits and gains' represent `plus income' whereas losses represent `minus income'. In other words, loss is negative profit. Both positive and negative profits are of a revenue character. Both must enter into computation, wherever it becomes material, in the same mode of computing the taxable income of the assessee. Although section 6 classifies income under six heads, the main charging provision is section 3 which levies income-tax, as only one tax, on the total income' of the assessee as defined in section 2(15). An income in order to come within the purview of that definition must satisfy two conditions. Firstly, it must comprise the total amount of income, profits and gains referred to in section 4(1)'. Secondly, it must be computed in the manner laid down in the Act. If either of these conditions fails, the income will not be a part of the total income that can be brought to charge:'

It remains to be seen that this decision was rendered in accordance with the provisions contained in the abovesaid sections in the Indian Income-?tax Act, 1922. Even according to this decision, the income must be computed in the manner laid down in the Act in order to come within the purview of the definition given under section 2(15).

Another decision cited before us was that reported in the case of C.I.T. v. J.H. Gotla (1985) 156 ITR 323 (SC). In this decision, while considering the facts appearing in that case in the light of the provisions contained in sections 16(3)(a) and 24(2) of Indian Income Tax Act, 1922, and the Explanation added by the Finance Act, 1979 to section 64 of the Income Tax Act, 1961, the Supreme Court held as under (at p. 340):

"In view of the aforesaid and in view of the attitude of the law makers in dealing with this problem as evidenced by the amendment and in the circular originally issued prior thereto and bearing in mind that under the scheme of the Act where the wife or minor child carries on a running business, the right to carry forward the loss in the running business would be available to the wife or minor child if they themselves were assessed, but the right would be completely lost if the individual in whose total income the loss is to be included is not permitted to carry forward the loss under section 24(2), since that would be the result of the strict literal construction, it is apparent that that could not have been the intent of Parliament. Therefore, where section 16(3) of the Act operates, the profit or loss from a business of the wife or minor child included in the total income of the assessee should be treated as the profit or loss from a business carried on by him for the purpose of carrying forward and set off of such loss under section 24(2) of the Act."

The facts appearing in the abovesaid case are entirely different. Further, this decision was rendered after taking into consideration Explanation 2 to section 64 of the Act. Therefore, the above-cited case will not render any assistance to decide the issue arising in the present case.

On this aspect, another decision brought to our notice was that reported in the case of C.I.T. v. India Sea Foods (1976) 105 ITR 708 (Ker.). In this case, one of the questions referred to the opinion of the High Court was whether the word "income" occurring in section 271(1)(c) of the Income Tax Act, 1.961, refers to a positive figure only and not to a loss. While deciding this question, the Kerala High Court held as under (headnote):

?"When, on the facts of the case which arose for decision before it, the Tribunal had already come to the sepcific finding that concealment of income by the assessee had been proved by the Department and that a penalty could, therefore, be imposed against the assessee there was no scope or occasion for raising and considering the question whether penalty would be leviable in cases where an assessee is found to have suffered a net loss. And, hence, not to have had any "total income" for the concerned assessment year. Therefore, the question., whether the word "income" in section 271(1)(c) should refer to a positive figure only and not to a loss, could not be said to be a question of law arising out of the order of the Tribunal and had not to be answered."

In the above-cited decision, the question whether income includes loss also was not decided. Hence, this decision also will not render any help in deciding the issue arising in the present case.

Yet another decision brought to our notice was that reported in the case of C.I.T. v. Jaora Oil Mill (1981) 129 ITR 423 (MP). In this case, while, considering the provisions contained in section 271(1)(c) of the Income Tax Act, 1961, the Madhya, Pradesh High Court, held as under, (headnote)

"The definition of income in section 2(24) of the Income Tax Act, 1961, is an inclusive definition and it covers even such items which arc not income in the natural sense of the word. Even in its broadest connotation, income refers to monetary return coming in and is conceptually contradictory to loss. Section 4 taxes income and not loss which can be carried forward under certain circumstances:"

This is the only decision touching the point in issue arising in the present case.

So also our attention was drawn to another decision of this Court reported in the case of Cement Distributors. P. Ltd. v. C.I.T. (1966) 60 1TR 586. According to the facts appearing in this case, the assessee disclosed the total profits for the accounting year ended October 31, 1953, relevant to the assessment year 1954-55 as Rs.2,10,941. The directors declared a dividend of Rs.81,150. At the time of assessment the Income-tax Office determined the income at Rs.3,91,143. This increase was due to the disallowance of a claim of alleged trading loss of Rs.2,12,691. This loss was held to be not genuine. On appeal, the Appellate Assistant Commissioner a. well as the Tribunal held that the transactions leading to the alleged loss were unreal and had been recorded with an ulterior motive. On these facts, the: Court held as under:

"(i) that penalty could be levied under section 28(1)(c) for deliberate furnishing of inaccurate particulars of income; (ii) as the loss was not real, the disallowed amount could be added back and treated as part of the commercial profits when applying section 23-A:"

According to the facts appearing in this decision, the Income-to Officer determined the total income at Rs. 3,91,143 after including the trading loss claimed at Rs.2,12,691. Therefore, it is on the assessed income that penalty was levied. On the other hand, according to the facts appearing the present case, the current loss claimed was not added to the income assessed by the Income-tax Officer. Again, in this decision nowhere it stated that income includes loss also for the purpose of levying penalty 'under section 28(1)(c) of the Indian Income-tax Act, 1922. Further, in the above-cited case, there were some categorical findings given by the Income-tax Officer, the Inspecting Assistant Commissioner and the Tribunal, that the loss was unreal and had been claimed with an ulterior motive. By according to the facts appearing in the present case, there is no such finding given either in the assessment proceedings or in the penalty proceeding Therefore, that decision is distinguishable on the facts appearing in the preset case.

Clause (iii) of section 271(1) of the Income Tax Act, 1961, as it stood during the relevant assessment year was as under:

"In the cases referred to in clause (c), in addition to any tax payable him, a sum which shall not be less than, but which shall not exceed twice, the amount of the income in respect of which the particulars have been concealed or inaccurate particulars have been furnished."

The relevant words are "the amount of income". The word "income has been defined under section 2(24) of the Income Tax Act, 1961. It is an inclusive definition and it takes into its fold not only the real income, but also such items which are not income in the natural sense of the word. Even in section 4, which is a charging section, nowhere is it stated that income includes loss. It is also significant to note that wherever it is necessary to consider loss as income, the Act specifically stated so, as can be seen from Explanation 2 to section 64. On the other hand, in sections 271(1)(c) and 271(1)(iii), nowhere is it stated that income includes loss. One other method of testing the contention put forward by the Department was that if income includes loss, then the assessee returned a loss of Rs.1,14,330. The Income-tax Officer assessed the net income at Rs.1,39,021 under the head "Business income" as can be seen from -the Inspecting Assistant Commissioner's order; then where is the difference of 20 per cent between the returned loss and the assessed income, in order to invoke the presumption as contemplated under the Explanation to section 271(1)(c).

But it remains to be seen that, according to the facts appearing in this case, the Income-tax Officer estimated the income and while determining the business income, the current loss claimed by the assessee was not disallowed and added back. The Inspecting Assistant Commissioner in the penalty proceedings also has not given any finding to the effect that the assessee concealed or furnished any inaccurate particulars with regard to the C current loss claimed. A plain reading of the assessment order as extracted by the Inspecting Assistant Commissioner in his order would show that the Income-tax Officer has not specifcially dealt with the current loss claimed by the assessee. Therefore, even assuming during the assessment year under consideration,' penalty under section 271(1)(c) is income based, since the loss was not disallowed and added back, penalty is not exigible on loss in this case. Therefore, considering the facts appearing in this case on this point in the light of the judicial pronouncements cited supra, we are of the opinion that the Tribunal was correct in holding that the penalty under section 271(l)(c) in the present case cannot be levied on the loss.

Another question in this reference is whether the Tribunal was correct in holding that the assessee did not conceal or furnish inaccurate particulars with regard to an unexplained cash credit of Rs.29,000. According to the Tribunal, even though the Explanation is applicable for determining the exact quantum of concealed income, it has to be shown that the credit did represent an income receipt which was concealed. According to the assessee's counsel, this addition was sustained on the basis that the assessee's explanation was untenable and, therefore, that itself would not lead to the conclusion that it was income which was concealed. According to learned counsel for the assessee, the Tribunal accepted in the quantum appeal the explanation offered by the assessee to delete a portion of the so-called unexplained cash credit in the books. Learned counsel submitted that the explanation offered by the assessee will hold good for the entire cash credit. Learned counsel further contended that the Explanation to section 271(1)(c) will not be applicable to the facts of this case. Learned standing counsel contended that the Explanation to section 271(1)(c) will be applicable to the facts of this case. Hence, it was submitted that the Tribunal was not correct in deleting the penalty on Rs.29,000. The submission of learned standing counsel was that the Explanation to section 271(l)(c) of the Act is applicable to the facts of this case and the assessee has .not discharged the initial burden placed upon him by producing any material and, therefore, the Tribunal was not correct in deleting the penalty on Rs.29,000.

In order to support his contention, learned standing counsel relied upon a decision of this Court rendered in the case of C.I.T. v. Bala I.M. Rao (1989) 177 ITR 114, wherein this Court held that, according to the facts appearing in that case, there was difference of 20% between the assessed income and the returned income and hence the Explanation to section 271(1)(c) is applicable, but the assessee has not produced any material to discharge the burden placed upon him and, therefore, penalty under section 271(1)(c) was exigible. To the same effect, there is also another decision of this Court in the case of C.I.T. v. T.K. Manicka Gounder (1989) 178 ITR 274. These are the cases where the Explanation to section 271(l)(c) is clearly applicable, according to the facts appearing in these cases and, further, the assessee failed to discharge the initial burden placed upon them.

But, according to the facts appearing in the present case, the assessee filed a return showing a loss of Rs.1,14,330. The Income-tax Officer rejected the account books and estimated the business income. But; for the purpose of making certain additions, the Income-tax Officer again relied on the account books. One such addition made by the Income-tax Officer was with regard to unexplained cash credits. On appeal, the Tribunal accepted the explanation offered by the assessee and deleted a portion of the so-called unexplained cash credit, and sustained an addition of Rs.29,000. In the penalty appeal, the Tribunal pointed out that this addition was made because the explanation offered by the assessee was not accepted. The fact remains that the assessee furnished books of account. The assessee also offered his explanation. The explanation was accepted by the Tribunal for the purpose of deleting a portion. If that is so, it cannot be said that the assessee failed to furnish any material to discharge the initial burden. On the other hand, the assessee furnished sufficient materials to discharge the initial burden. The assessee's accountant and cashier were examined. Therefore, the assessee discharged the initial burden placed upon him. Thereafter the Department has not brought any materials to show that the assessee had concealed or furnished inaccurate particulars with regard to the abovesaid cash credit.

The function of the fiction created by the Explanation to section 271(1)(c) is to convert a case where the returned income is less than eighty per cent of the assessed income into a case which would be covered by section 271 (1)(c), unless the assessee proves that he was not guilty of any fraud or any gross or wilful neglect in filing the return of his income. The Explanation exhausts itself once this purpose is achieved and does not create any further fiction to the effect that the assessed income has to be taken as the correct income for the purpose of imposition of penalty under section 271(1)(c). For the purpose of fixing the quantum of penalty under section 271(1)(iii), the amount of income in respect of which particulars have been furnished, has to be found by the authority concerned. Any other interpretation would make the proceedings for levy of penalty completely subservient to the assessment proceedings which does not appear to be the scheme of the Act. This was the view taken by this Court in the case of M. Radhakrishniah v. C.I.T. (1984) 147 ITR 133.

Under the Explanation to section 271(1)(c), to prove the absence of fraud or gross or wilful neglect, ordinarily and generally there cannot be any direct evidence. The assessee merely has to place materials of the primary facts or the circumstances which in all reasonable probability would show that he was not guilty of any fraud or gross or wilful neglect. The facts appearing in this case would go to show that the assessee produced primary facts before the Inspecting Assistant Commissioner to dislodge the burden placed upon him. On the other hand, in the penalty proceedings, no materials were brought in by the Department to show that the assessee concealed or furnished inaccurate particulars. In fact, in the quantum appeal, the Tribunal accepted the explanation offered by the assessee and deleted a portion of the unexplained cash credit. It is under these circumstances and after taking note of all these facts that the Tribunal pointed out that even though the explanation is applicable for determining the exact quantum of concealed income, it has to be shown that the credit did represent an income receipt which was concealed. In such circumstances, therefore, we consider that the Tribunal was correct in holding that Rs.29,000 cannot be termed as concealed income:

In that view of the matter, we answer both the questions referred to us in the affirmative and against the Department. The assessee is entitled to his costs. Counsel's fee is fixed at Rs.500.

M.B.A./1552/T??????????????????????????????????????????????????????????????????????????????????? Reference answered.