R. Gururajan, J.:— The Income-tax Appellate Tribunal has chosen to refer the following two questions of law:

“1. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that there is no concealment and penalty under Section 271(1)(c) is not leviable?

2. Whether, the Tribunal is right in law in holding that penalty under Section 271(1)(c) is not at all leviable on a representative asses-see ?”

2. The assessee claimed that he had received gifts from two persons, namely, Mr. Mohan and Mr. Arjundas, residents of Singapore. The amount so received was Rs. 2,36,670 and was treated as income under section 68 of the Income-tax Act, 1961. The addition was upheld by the Commissioner of Income-tax (Appeals). The Tribunal and this court rejected the claim of the assessee.

3. The Assessing Officer thereafter initiated penalty proceedings for concealment of income. There was no confirmation of the donors. The recipient was a minor and therefore, he could have received from someone who is known to the legal representative. The Assessing Officer was of the opinion that the legal representative could not bring on record any material to suggest that it was not really income that was concealed by the assessee. He invoked the provisions of Explanation 1 to the said section. The matter was taken in appeal. The appellate authority quashed the penalty order. The matter was taken to the Tribunal by the Revenue. The Tribunal has chosen to reject the appeal. It is in these circumstances, the Revenue is before us. Sri Indra Kumar, learned senior counsel would take us through the material on record to say that the Tribunal has committed a serious error both in law and on facts in holding that there is no concealment in the case on hand. He would refer to us the earlier proceedings and other material on record to contend that concealment is fully proved in the case on hand and that therefore, according to him, the finding of no concealment is factually and legally unsustainable. He therefore says that in the light of concealment, penalty levied is in order. He further elaborates by arguing that a representative of the assessee is answerable for penalty.

4. Per contra, learned counsel for the respondent would support the order.

5. After hearing, we have carefully seen the material on record. From the material on record, it is seen that addition was made by the Assessing Officer which was confirmed even by this court, Thereafter, the Assessing Officer initiated the penalty proceedings on the ground of concealment. He, after hearing, levied penalty in terms of Section 271(1)(c) of the Act. The Commissioner was of the view that certain additions were made and those additions were sustained after rejecting the explanation offered by the assessee based on the rules of evidence and the deeming provisions connected with income-tax assessment under section 68 or 69 of the Act. The Commissioner was of the view that that cannot be a basis for initiating penalty proceedings under Section 271(1)(c) of the Act. When the same was challenged, the Tribunal has chosen to accept the case of the assessee. Section 271(1)(c) would read as under:

“(1) If the Assessing Officer or the Commissioner (Appeals) 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,—

(i) ….

(ii) in the cases referred to in clause (b), in addition to any tax payable by him a sum of ten thousand rupees for each such failure;

(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, but which shall not exceed three times, the amount of tax sought to be evaded by reason of the concealment of particulars of his income or the furnishing of inaccurate particulars of such income.”

6. Penalty is leviable in the event of concealment or in the event of furnishing inaccurate particulars of income. Explanation 1 would provide for an explanation in the matter. The Assessing Officer in his order has noticed the factual aspects of the matter. The Assessing Officer would notice the so called gift from Sri Arjundas and Sri Mohan from Singapore amounting to Rs. 2,36,670. The Assessing Officer also noticed the statement of Smt. Vishibai, Sri Ramesh etc. He has also noticed the search in the case of Smt. Shobha R. Kalro at Bangalore. He has also noticed the statement of Radhakishandas in the matter of gift. Thereafter, an assessment order was passed on March 25, 1986. The said order was subsequently considered. To the penalty proceedings, reply was submitted by the assessee. The Assessing Officer would notice that it has been found on an examination of Sri R.V Kalro and Smt. Shobha R. Kalro, that the gifts could not be genuine. He also noticed the alleged donors have no normal contact in the matter. He noticed that these amounts were brought in the guise of “gifts”. He also noticed that the return was filed by Sri. Radhakishandas V. Kalro, father and natural guardian of Master Sunil R. Kalro. He would notice that the books of account are written under his advice and the entry regarding the amount received by draft stated to be gift in the capital account is also made under his advice. The explanation, to say the least, cannot be accepted in the light of a detailed examination of facts by the Assessing Officer. It cannot be said that there is no concealment in the case on hand. It also cannot be said that the assessees has furnished accurate particulars of income. On the other hand, the assessee has chosen to furnish inaccurate particulars by way of concealment, as we see from the material on record. The Assessing Officer was therefore right in not accepting Explanation 1 to Section 271(1)(c) of the Act. When this order was challenged, the Commissioner has ruled that the Department has not discharged its burden in the case on hand. The order of the Assessing Officer would clearly go to show that the assessing authority has chosen to discharge his burden by way of material on record. The Commissioner, in our view, is not correct in holding that the Assessing Officer is not justified in imposing penalty. When this order was challenged by the Revenue, the Tribunal noticed various aspects of the matter. In fact, learned counsel for the assessee before the Tribunal has argued that although the assessee might not have been able to prove the credit entries with sufficient evidence at the same time again the Department has also no sufficient evidence to prove that the amounts really represent the assessee's concealed income for the year. The Tribunal notices in paragraph 6 that the appellate authority has not cared to make any detailed discussion in the matter. It also notices that the explanation furnished by the assessee may not fully substantiate. The Tribunal also notices that the addition is sustainable on the ground of preponderance. But the Tribunal particularly would hold that the Department has not to come up with much more evidence to establish to the hilt that the amount represented concealed income of the assessee for the year under consideration. Evidence to establish to the hilt is unnecessary for the purpose of levy of penalty. Levy of penalty is available under Section 271(1)(c). All that the section requires is to consider the explanation and also proving by the Department with regard to concealment in the case on hand. Materials are staring against the assessee. Therefore, the findings of the Tribunal that the Department has not discharged its duty of concealment in the light of the detailed order of the Assessing Officer and in the light of the staring material available on record. This is not a case of “no concealment” or of “no inaccurate” particulars of income in terms of Section 271(1)(c) of the Act. In these circumstances, we are of the view that the first question has to be answered in favour of the Revenue in the light of the material on record and on the facts and circumstances of this case.

7. In so far as the second question is concerned, we see that admittedly, the assessee is a minor. The natural guardian has made a statement that the whole thing was done under his advice. Section 271(1)(c) would provide for penalty under the Act in the event of the Assessing Officer or the Commissioner being satisfied that any person has failed to comply with a notice under sub-section (1) of section 142 or sub-section (2) of section 143 (or fails to comply with a direction issued under sub-section (2A) of section 142).

8. “Person” has been defined under section 2(31). A careful reading of the definition of person would show that a minor cannot said to be a person for the purpose of Section 271(1)(c) of the Act. Even otherwise in our view a minor has to be protected on account of the age factor. In fact several other enactments would also provide sufficient safety to the minor acts. Therefore, despite the strong arguments of Sri Indra Kumar, learned senior counsel, we are of the view that a minor cannot be saddled with any penalty for any omission and commission committed by others acting on behalf of the minor.

9. In fact, the Kerala High Court in (sic) has ruled that an individual is different from a person. Though, a minor can be an assessee but in the light of the wordings of the “person” under Section 271(1)(c), the minor cannot be saddled with penalty.

10. In fact, the Madras High Court in Commissioner Of Income-Tax v. R. Srinivasan, [1997] 228 ITR 214 has ruled that any sum payable by the guardian on behalf of the minor is recoverable under section 162 of the Act by the guardian including penalty for the default committed by him. The logic is simple. Any omission or commission committed by a representative or a guardian cannot be fastened on the minor in terms of the Act. Therefore, we deem it proper to hold that no penalty can be levied on the minor.

11. The next question is as to whether the representative is answerable to the penalty. Chapter XV deals with liability in special cases. Section 159 deals with legal representatives. Section 160 deals with representative assessee and section 161 deals with liability of a representative assessee. Section 162 provides for recovery of tax by the representative of the assessee.

12. In the case on hand, penalty is levied by the Assessing Officer. The Appellate Commissioner has set aside the same. The Tribunal would hold that the expression “his” as appeared in Section 271(1)(c) clearly denotes the income in respect of the person who signs and files the returns. In the instant case, the representative assessee is that person. The assessment is however liable to be made in respect of the income of the beneficiary and if any penalty is levied, the beneficiary alone would be subject to such penal measure. If in the return of income filed by the representative assessee on behalf of the beneficiary, some concealment is made, that concealment will be in respect of the income of the beneficiary. The Tribunal was of the view that since the beneficiary himself does not file the return, he would not come within the ambit of the expression “his income” as appearing in Section 271(1)(c) of the Act. We are not in agreement with the interpretation placed by the Tribunal. The interpretation of the Tribunal if accepted would result in the representative acting contrary to the statute and getting over the levy of penalty. A reasonable interpretation has to be given with a view to achieve the object of the Act. The object of the Act is to obtain return with accurate particulars for the purpose of levy of tax. Therefore, in fact, the Allahabad High Court has chosen to say that an assessment can be made on the representative-assessee in respect of a minor and also a direct assessment can be made on the minor. But however, the Allahabad High Court has not chosen to say anything with regard to liability of the minor in the matter of penalty. The Madras High Court has however chosen to consider the penalty which could be imposed on the guardian. The Madras High Court (see [1997] 228 ITR 214) after noticing sections 162 and 271 has ruled that (page 220) : “even assuming that the guardian is not entitled to recover the penalty paid under section 271(1)(a) of the Act from the minor's estate, that would not mean that no penalty is imposable on the guardian for the delay in filing the returns for the minor.” Even sections 160 and 161 would deal with representative. Since the Tribunal has not considered this aspect of the matter, we deem it proper to direct the Tribunal to reconsider the liability of a representative with regard to penalty in the given circumstances in the light of Chapter XV of the Income-tax Act. The second question is not answered and the matter is remitted back for redecision. Parties are to appear without waiting for any notice on May 14, 2007. The Tribunal is to complete the proceedings within six months from the date of receipt of a copy of this order.