COMMISSIONER OF INCOME TAX Vs. WARASAT HUSSAIN

JUDGEMENT

(1.) THIS is a reference under S. 256(2) of the INCOME TAX ACT, 1961. The question referred to us for our opinion is:

(2.) THE question referred to us relates to the asst. year 1972 -73. The assessee is an individual and derives income from business in country liquor as well as other sources. There being a difference of more than 20per cent between the returned income and the assessed income, penalty proceeding was initiated. Since the penalty was to be over Rs. 1,000, the matter was referred to the IAC. The latter imposed a penalty of Rs. 20,379 for concealment of three items. The first was a sum of Rs.

(3.) WE now come to the next item, i.e., concealment of Rs. 3,369 received as capital gain by sale of land. Land measuring about 491 kathas was sold by the assessee during the accounting year for Rs. 49,500. The central capital account of the assessee showed a deposit of Rs. 12,375 which represented one -fourth interest of the assessee in the sale proceeds. The assessee did not produce the sale deed in respect thereof. If the sale deed had been produced, the area where the land was situated and the probable market value could have been ascertained therefrom. It could have been found out whether the land was sold actually for Rs. 49,500 or for more. This was a matter within the special knowledge of the assessee. The Tribunal could not be expected to produce the sale deed. Learned counsel for the assessee submitted that even if the assessee did not produce the original sale deed, the Revenue could have obtained a certified copy of the sale deed from the registration office and disproved the stand of the assessee that the land had been sold really for a sum higher than Rs. 49,500. This does not lie in the mouth of the assessee. No Court or Tribunal should countenance in an assessee the attitude of failure to produce relevant material and ask the adversary to disprove it. This attitude was decribed by Chinnappa Reddy J. in McDowell and Co. Ltd. vs. CTO (1985) 47 CTR (SC) 126 : (1985) 154 ITR 148 (SC).