JUDGMENT
1. The following question has been referred to this court by the Appellate Tribunal at the instance of the Revenue under Section 256(2) of the Income-tax Act, 1961 :
" Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in law in cancelling the penalty levied under Section 271(1)(c) of the Act ?"
2. The Central excise authorities conducted a raid on the business and residential premises of the assessee on March 28/29, 1970, and during the course of search allegedly recovered the following items :
Value in Rs.
1. Gold biscuits 12,840
2. Primary gold 3,600
3. New ornaments 12,800
4. Old ornaments 3,500 32,740
3. Of these items, items Nos. 3 and 4, admittedly, belonged to the assessee. So far as items Nos. 1 and 2 are concerned, the assessee, from the very beginning, denied having owned them and the assessee also denied the recovery of these items having been made from his premises. The Appellate Tribunal recorded a finding of fact that, in view of the affidavits filed by the witnesses to the search memo, it could not be said without doubt that the gold biscuits and primary gold had been recovered from the premises of the assessee and that they were acquired by the assessee. This finding has not been challenged as such by the Revenue. Taking this view, the Tribunal concluded that in view of the Explanation to Section 271(1)(c) of the Act, the onus which was on the assessee was to show that failure to disclose complete income did not arise from any fraud or wilful neglect on his part. The Tribunal having found that there is nothing to suggest that these goods had been acquired by the assessee during the year under consideration and that the assessee had discharged the onus placed on him by the Explanation to Section 271(1)(c) and such finding not having been specifically challenged by the Revenue in this reference, we are of the considered view that no exception could be taken to the view taken by the Tribunal that the assessee having discharged the onus that lay upon him under the Explanation, no penalty could be levied despite additions having been made with regard to the value of gold biscuits and primary gold.
4. For the above reasons, we answer the aforementioned question in the affirmative, that is, in favour of the assessee and against the Revenue. No order as to costs.