U.T. Shah, J.

1. In this reference, the Revenue is challenging the action of the Income Tax Appellate Tribunal (the Tribunal), in cancelling the penalty imposed under section 27(1)(c) of the Income Tax Act, 1961 (the Act). The respondent (hereinafter referred to as the "assessee"), is an individual. The assessment year is 1971-72 and the relevant previous year is the financial year which ended on March 31, 1970, in respect of the item with which we are concerned in this reference.

2. The facts in brief are that, on June 18, 1970, the assessee along with an accomplice, was apprehended by the customs authorities and gold biscuits with foreign markings weighing 400 tolas were found on his person. When interrogated by the customs authorities, the assessee admitted that the said gold belonged to him. In the course of the Income Tax assessment proceedings, however, the assessee resiled from his earlier stand and contended that he was not the owner of the gold. The Income Tax Officer (the ITO) rejected this contention and treated a sum of Rs. 84,000 being the market value of the gold at the material time, as the assessees income from undisclosed sources, by invoking the provisions of section 69A of the Act.

3. The Appellate Assistant Commissioner of Income Tax (the AAC) upheld the finding of the Income Tax Officer in regard to the ownership of the gold but took the view that an addition to be made on that account requires to be quantified with reference to the international price of gold and not the market price prevailing in India.

4. The assessee had accepted the order of the Appellate Assistant Commissioner. However, the Revenue went up in appeal before the Tribunal and contended that the gold biscuits should have been valued at the market price prevailing in India and not at the international price as held by the Appellate Assistant Commissioner. The Tribunal accepted the stand taken by the Department and reversed the decision of the Appellate Assistant Commissioner and thereby restored the original addition of Rs. 84,000 made by the Income Tax Officer.

5. On the aforesaid facts, the Inspecting Assistant Commissioner of Income Tax (the Inspecting Assistant Commissioner) initiated proceedings under section 274(2)/271(1)(c) of the Act and called upon the assessee to show cause why penalty should not be imposed for the concealment of Rs. 84,000. It appears that the assessee had not responded to the said show-cause notice issued by the Inspecting Assistant Commissioner. In this view of the matter, the Inspecting Assistant Commissioner was of the opinion that the assessee had no explanation to offer. He, therefore, imposed a penalty of Rs. 84,000 under section 271(1)(c) of the Act.

6. Aggrieved by the order of the Inspecting Assistant Commissioner, the assessee preferred an appeal before the Tribunal and submitted that in view of the decision of the Supreme Court in the case of CIT v. Anwar Ali : [1970]76ITR696(SC) and of the Punjab and Haryana High Court in the case of Addl. CIT v. Karnail Singh v. Kaleran , the Inspecting Assistant Commissioner was not justified in imposing penalty under section 271(1)(c) of the Act. It was also submitted that the addition made by invoking the provisions of section 69A of the Act would not automatically justify the Income Tax authorities to hold that there was a concealment of income by the assessee. In other words, the assessee argued before the Tribunal that the fiction created by section 69A of the Act should be restricted for assessment purpose only and cannot be imported into penalty proceedings. In its order under reference, the Tribunal deleted the penalty imposed by the Inspecting Assistant Commissioner.

7. Having been dissatisfied with the order of the Tribunal, the Revenue made an application under section 265(1) of the Act before the Tribunal with a request to refer the following questions to this court :

"1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the fiction crated by the provisions of section 69A of the Income Tax Act was only for the purpose of assessment and that it cannot be made applicable for levy of penalty under section 271(1)(c) on the assessee

2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in cancelling the penalty of Rs. 84,000 levied on the assessee under section 271(1)(c) read with section 274(2) by the Inspecting Assistant Commissioner "

8. Learned counsel for the Revenue submitted that even in the case of "deemed income" included in the total income of the assessee, the assessee would be liable to penalty under section 271(1)(c) of the Act. In this connection, he relied on certain decisions of the Punjab and Haryana High Court as well as of the Andhra Pradesh High Court in the case of CIT v. Aya Singh Ishar Singh CIT v. Behari Lal Pyare Lal , Hindustan Tools Mfg. Co. v. CIT , CIT v. Chandulal : [1985]152ITR238(AP) . Thereafter, he referred to the decision of the Supreme Court in the case of Chuharmal v. CIT : [1988]172ITR250(SC) , wherein, according to him, on identical facts and circumstances obtaining in that case, the Supreme court had upheld the penalty imposed under section 271(1)(c) of the Act. He, therefore, strongly urged that the questions referred to us should be answered in favour of the Revenue.

9. As none appeared on behalf of the assessee, we had requested Shri Tripathi to be amicus curiae and assist us in disposing of this reference. Shri Tripathi for the assessee submitted that, since the penalty proceedings and assessment proceedings are two separate and distinct proceedings, the fact that certain additions were made in the assessment proceedings under section 69A of the Act would not automatically justify the Inspecting Assistant Commissioner to impose penalty under attention 271(1)(c) of the Act. In this connection, he also invited our attention to the aforesaid decision of the Supreme Court in the case of Chuharmal v. CIT : [1988]172ITR250(SC) and pointed out that the penalty in that case was upheld by the Supreme Court mainly on the ground that the Income Tax authorities have invoked the provisions of the Explanation to section 271(1)(c) of the Act as they stood at the relevant time. Since, however, in the instant case, the Income Tax authorities have not invoked the provisions of the Explanation to section 271(1)(c) of the Act, the Revenue cannot get any benefit out of the said decision of the Supreme Court. Placing before us a recent decision of this court in the case of CIT v. P. M. Shah : [1993]203ITR792(Bom) (I.T.R. No. 237 of 1977 dated November 9, 1992), to which both of us were parties, Shri Tripathi pointed out that, since the main provision of section 271(1)(c) and the Explanation thereto are two separate provisions and since the Inspecting Assistant Commissioner has not invoked the provisions of the Explanation to section 271(1)(c) of the Act, the same should not be considered in deciding the issue raised in this reference. In that case, the Income Tax Officer had referred the matter to the Inspecting Assistant Commissioner as the penalty imposable under section 271(1)(c) of the Act exceeded Rs. 25,000. The Income Tax Officer had not invoked the provisions of the Explanation to the said section. However, while imposing penalty under section 271(1)(c) of the Act, the Inspecting Assistant Commissioner had invoked the provisions of the Explanation to the said section. This was challenged by the assessee before the Tribunal and the Tribunal held that the Inspecting Assistant Commissioner could not have invoked the provisions of the Explanation to section 271(1)(c) of the Act as the same was not invoked by the Income Tax Officer. Against the said decision of the Tribunal, the Revenue had come up in a reference before this court and this court has upheld the order of the Tribunal. In doing so, this court had referred to the decision of the Supreme Court in the case of CIT v. Mussadilal Ram Bharose : [1987]165ITR14(SC) and of the Gujarat High Court in the case of CIT v. Lakhdhir Lalji : [1972]85ITR77(Guj) . According to him, unless and until the provisions of the Explanation to section 271(1)(c) of the Act are specifically invoked by the Inspecting Assistant Commissioner, we should not consider the said provisions in deciding the issue raised in the present reference. He, therefore urged that we should answer both the question referred to us against the Revenue and in favour of the assessee.

10. Learned counsel for the Revenue, in his reply, vehemently argued that no not mentioning the Explanation in the show-cause notice issued by the Inspecting Assistant Commissioner or by not specifically invoking the provisions of the Explanation to section 271(1)(c) of the Act, the Revenue is not prevented from imposing penalty under section 271(1)(c) of the Act on the main provision of the section. In other words, according to him, by not mentioning the Explanation in the show-cause notice, no prejudice would be caused to be Revenue and, therefore, we should consider the same as was done in the case before the Supreme Court.

11. In order to appreciate the stand taken by the parties, it would be necessary to advert to the relevant provision of section 271 (1)(c) and the Explanation thereto as they stood at the material time :

"Section 271(1) If the Income Tax Officer or the Appellate Assistant Commissioner, in the course of any proceedings under this Act, is satisfied that any person.....

(c) has concealed the particulars of his income or furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty. -

(iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than twenty per cent. but which shall not exceed one and a half times the amount of the tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income. "

12. The section further provides that, if the concealment exceeds Rs. 25,000, the Income Tax Officer cannot issue any notice without the prior permission or approval of the Inspecting Assistant Commissioner.

13. The Explanation to section 271(1)(c) of the Act, which was inserted by the Finance Act, 1964, with effect from April 1, 1964, reads as under :

"Explanation. - Where the total income returned by any person is less than eighty per cent. of the total income (hereinafter in this Explanation referred to as the correct income) as assessed under section 143 or section 144 or section 147 (reduced by the expenditure incurred bona fide by him for the purpose of making or earning any income included in the total income but which has been disallowed as a deduction), such person shall, unless he proves that the failure to return the correct income did not arise from any fraud or any gross or wilful neglect on this part, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of clause (c) of this sub-section."

14. It would appear from the above that the Explanation extends the provision of clause (c). Therefore, once the explanation is also invoked in the show-cause notice, the burden is not only shifted on the assessee but is also heavy to prove that he had not concealed particulars of his income or furnished inaccurate particulars thereof. However, in the absence of invoking the Explanation specifically, the burden would remain on the Revenue to bring the assessees case within the mischief of the main provisions of section 271(1)(c) of the Act. In the instant case, it is not in dispute that the provision of the Explanation was not invoked nor was it mentioned in the show-cause notice issued to the assessee.

15. On due consideration of the submissions made on behalf of the parties and the material available on record coupled with the relevant provisions discussed above, we are of the view that no fault could be found in the order of the Tribunal under reference. It is by now trite law that the assessment proceedings and penalty proceedings are two separate and distinct proceedings. The fact that certain additions were made in the assessment proceedings would not automatically justify the Revenue to impose penalty under section 271(1)(c) of the Act. It is also a well-established principle that the provisions relating to penalty proceedings are quasi-criminal in nature and, therefore, the burden is large on the Revenue to establish the charge before imposing penalty under section 271(1)(c) of the Act, more so, when the provision of the Explanation to that section has not been invoked. In the instant case, it is quite apparent from the order of the Inspecting Assistant Commissioner that he has imposed penalty under section 271(1)(c) of the Act merely on the ground that certain additions were made in the assessment proceedings and that the assessee had accepted the same. The provisions of section 69A of the Act are enabling provisions for making certain additions, if the assessee fails to give an explanation or the explanation given by the assessee is not to the satisfaction of the Income Tax Officer. Surely, the additions made on this count would not automatically justify the imposition of penalty under section 271(1)(c) of the Act. In our view, since the Inspecting Assistant Commissioner had failed to invoke the provision of the Explanation to section 271(1)(c) of the Act, there is no possibility of confirming the penalty imposed by him under section 271(1)(c) of the Act.

16. We would like to observe that invariably the Revenue is not properly applying its mind before initiating penalty proceedings and imposing penalty under section 271(1)(c) of the Act, or for that matter, any other penal provisions contained in the Act. It is due to this reason that even though the Revenue has a good case for imposing penalty under various provisions of the Act, the assessee, by and large, succeed right from the first appellate stage itself. In the subsequent proceedings before the Tribunal and in the reference before the High Court, the Revenue finds it extremely difficult to improve the case which was not well though of when initiated at the first stage. In this case also, a similar thing has happened. If the Inspecting Assistant Commissioner had invoked the provision of the Explanation to Section 271(1)(c) of the Act, perhaps the decision of the Tribunal and thereafter, of this court would have been different from what it is.

17. In view of the aforesaid discussion, we answer both the questions in the affirmative and in favour of the assessee. No order as to costs.

18. Before we part with his judgment, we would like to put on record our appreciation of the Assistance referred by Shri Tripathi as amicus curiae.