Satish Chandra, C.J.
1. The assessee filed his return on a total income of Rs. 9,003 for the assessment year 1968-69. The ITO rejected the books of account of the assessee holding that they were unreliable and assessed the income at Rs. 25,530. On appeal, the income was finally reduced to Rs. 17,030.
2. Penalty proceedings were initiated. The IAC held that the concealment was to the tune of Rs. 8,301. He imposed a penalty of Rs. 9,000. On appeal, the Tribunal held that the account books were rejected because of a survey made by the Sales Tax Officer in which he found that there were two note books for the period 1st July, 1967, to 2nd August, 1967. During this period sales to the tune of Rs. 4,014 were found to have been suppressed. This was the only factor which raised suspicion. The Tribunal held that in the circumstances the concealment of sales has been proved to the extent of Rs. 4,014. On this the assessee could have earned an income of Rs. 1,003 at the rate of 25% of the turnover. Hence, the Tribunal imposed a penalty of Rs. .1,003 on the assessee. At the instance of the Commissioner, the Tribunal has referred the following question of law for our opinion :
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the penalty was imposable with reference to the amount, which is actually found to have been concealed by the assessee and not with regard to the entire extra profit addition sustained in the quantum proceedings '
3. We have heard learned counsel for the revenue. No one appeared on behalf of the assessee. The Tribunal's order shows that none appeared before the Tribunal either. The Tribunal has found that the account books were rejected on the ground that there was suppression of sales to the extent of Rs. 4,014. The detection was of material concealment of income to the extent of Rs. 1,003 and the rest of the addition to the returned income was on estimate. In our opinion, these are findings of fact. In the special circumstances of the present case, the Tribunal had no material to prove the concealment of income which could form the basis of impossible penalty equal to the income added. This view is taken on the facts and circumstances of the present case.
4. We, therefore, answer the question in the affirmative, in favour of the assessee and against the department. As no one has appeared on behalf of the assessee, there will be no order as to costs. The fee of the learned counsel for the department, however, is assessed at Rs. 200.