JUDGMENT In compliance with this court's direction under section 256(2) of the Income Tax Act, 1961, made by order dated 9-9-1980, in I. T. A. No. 125 of 1980, the Appellate Tribunal, New Delhi, has referred the following questions stated to be of law and to arise out of its order dated 27-10-1979, passed in I. T. A. No. 1393/Del of 1978-79 for the assessment year 1972-73 for the opinion of this court :
"1. Whether, on the facts and in the circumstances of the case, the assessee could be held to have discharged the onus under the Explanation to section 271(1)(c) of the Act ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in upholding the Appellate Assistant Commissioner's finding that there was no concealment on the part of the assessee ?
3. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in confirming the Appellate Assistant Commissioner's order cancelling the penalty imposed on the assessee ?"
2. The penalty in question was deleted by the Appellate Assistant Commissioner. The Tribunal dismissed the revenue 's appeal by observing as under :
2. The penalty in question was deleted by the Appellate Assistant Commissioner. The Tribunal dismissed the revenue 's appeal by observing as under :
"2. The Appellate Assistant Commissioner deleted the penalty for the following reasons :
As held by the Allahabad High Court in the case of CIT v. Mansa Ram and Sons (1977) 106 ITR 307 (All), a conditional surrender of cash credits or agreement to certain assessment does not attract penalty proceedings. On the facts and in the circumstances of the present case, it appears to be obvious that the income assessed by the Income Tax Officer was agreed to by the appellant as a measure of co-operation and with a view to escaping penal consequences, I find from the assessment order that no basis is given for estimating the income at Rs. 35,000. It, therefore, appears that the agreement was conditional. In such circumstances, penalty cannot be imposed. From another angle also, the facts as noticed in the assessment order do not indicate any concealment at all. The income was merely estimated without finding any concealment as such. From this angle also, therefore, penalty is not attracted. The penalty order is, therefore, cancelled.
The revenue is in appeal.
3. Sri B. D. Sainia, appearing for the revenue, supported the order of the Income Tax Officer. For the assessee reliance was placed on the Appellate Assistant Commissioner's order.
4. After hearing the parties, we find ourselves in agreement with the reasoning and conclusion of the Appellate Assistant Commissioner on the facts of the case we decline to interfere."
3. We have heard Sri A. N. Mahajan, learned counsel for the Commissioner. No one has appeared for the respondent.
3. We have heard Sri A. N. Mahajan, learned counsel for the Commissioner. No one has appeared for the respondent.
The finding that the assessee had agreed to a higher assessment on the condition that no penalty would be imposed, is a finding of fact. Similarly, the finding that no actual concealment was established is also a finding of fact and, therefore, the assessee would be held to have discharged the onus under the Explanation to section 271(1)(c) of the Act. We, therefore, answer all the questions in the affirmative, i.e., in favour of the assessee and against the revenue .