This is connected with Miscellaneous Case No. 403 of 1939 Gopaldas Parshottamdas v. Commissioner of Income-tax, C.P. and U.P.  (9 I.T.R. 130) which we have just disposed of. In this case also the assessee under Section 66(3) of the Act prays that we should require the Commissioner to make a reference to this Court.
The fresh facts which it necessary to mention in connection with the present application are that after the Income-tax Officer had made an assessment in connection with the income of the present assessee under Section 23(4) he issued a notice to the assessee calling upon him to show cause why a penalty should not be imposed on him in addition to the income-tax payable by him inasmuch as he had concealed the particulars of his income and dehberately furnished maccurate particulars of such income. From what we have said in the connected case it is clear that the income-tax authorities were of the definite opinion that the assessee had not exhibited before the authorities his true books of account and that there were good grounds for holding that inaccurate particulars of income had been shown and that there was concealment of income. The Income-tax Officer was of the opinion that the assessee deserved a tribute for his acuteness exercised in a wrong direction and that it was difficult to discover the devices of the assessee which were adopted in an ingenious and clever manner. He, therefore, imposed a penalty of Rs. 2,000 in the hope that it would be a sufficient warning to the assessee in future. The learned Assistant Commissioner agreed with the Income-tax Officer and thought that the circumstances of the case called for a prosecution of the assessee and the assessee should consider himself fortunate in escaping with a penalty of Rs. 2,000.
The same questions of law which arose in the connected case are attempted to be formulated in the present case, but if they can be so formulated, we have already dealt with them and it is not necessary to repeat what we have said in the connected case. For the rest, when it is said that the circumstances of the case did not deserve a penalty or that they do not deserve a maximum penalty, we find that this is a matter with which the High Court has not much concern, and unless it can be shown that the discretion vested in the Income-tax authorities has been exercised arbitrarily, with no regard to judicial considerations, this Court cannot require the Commissioner to state a case.
For the reasons given above, we dismiss this application with costs. The counsel for the Department is entitled to a fee of Rs. 75.