D.M. Chandrashekhar, J.
1. The Income-tax Appellate Tribunal has, at the instance of the revenue, referred to this court the following question:
' Whether, on the facts and in the circumstances of the case, the Explanation to Section 271(1)(c) of the Income-tax Act, 1961, inserted by the Finance Act, 1964, with effect from April 1, 1964, applies to the assessment years 1958-59 to 1962-63, on the ground that the returns of income were filed after April 1, 1964 ?'
2. Sri R. C. Sharma, learned counsel for the respondent-assessee, submitted that the above-question referred by the Tribunal has become purelyacademic in view of the express finding of the Tribunal which reads as follows:
' On these facts and circumstances we fail to see as to how can there be any question of concealment of income in this case.'
3. Elaborating his objection Sri Sharma submitted that there was a positive finding by the Tribunal that there was no concealment of income, by the respondent and hence the answer to the question whether the Explanation to Section 271(1)(c) inserted by the Finance Act, 1964, does or does not apply to the present case, will have no effect upon the ultimate decision as to whether penalty should be levied on the respondent for furnishing inaccurate particulars of the income of her deceased husband.
4. In reply to the objection raised by Sri Sharma, the learned standing counsel appearing for the revenue submitted that under the Explanation to Section 271 inserted by the Finance Act, 1964, when the total income returned by a person is less than 80 per cent. of the total income as assessed, the burden is On such person to prove that the failure to return the correct income did not arise from any fraud or any gross or wilful neglect on his part and that, unless he proves so, he is deemed to have concealed the income or furnished inaccurate particulars of such income for the purpose of Clause (c) of Section 271 of the Act. The learned standing counsel maintained that the Tribunal had entirely overlooked the Explanation and relied upon the decision of the Supreme Court which was rendered prior to the insertion of the Explanation in Section 271 of the Act and that hence the question of law referred by the Tribunal is not academic, but is a live question which requires to be answered by us.
5. In para. 6 of its appellate order the Tribunal has said thus :
' On merits, at the outset it is to be borne in mind that the returns were not filed by the assessee himself but after his death by his widow who was not acquainted with the business of the assessee ; it is further to be borne in mind that the widow of the assessee volunteered the information in regard to the sales tax assessments on the basis of which the Income-tax Officer made the assessments in this case.
It is further seen that the Income-tax Officer simply adopted the estimate made by the Sales Tax Officer in estimating the income of the assessee at a higher figure. On these facts and circumstances, we fail to see as to how can there be' any question of concealment of income in this case. '
6. The aforesaid passage in the appellate order of the Tribunal would, in substance, amount to this, namely, that the omission or failure of the respondent to give correct particulars of the income of her husband was. not due to any fraud or any gross or wilful neglect. In such a situation even if the Explanation to Section 271(1) inserted by the Finance Act,' 1964, should be applied, the respondent should be held to, have discharged theburden placed by the Explanation. Hence, Sri Sharma is right in our opinion that the question referred by the Tribunal is academic in view of its clear finding that there was no concealment of income by the respondent. Consequently, it becomes unnecessary for us to answer the question referred to us. Hence, we return this reference without answering the same.
7. In the circumstances of the case, parties shall bear their own costs in this reference.