H. N. Seth, J. - By this application under S. 256(2) of the Income-tax Act, 1961 the Commissioner of Income-tax prays that the Income-tax Appellate Tribunal should be asked to state the case in respect of the following two questions :
(1) Whether on the facts and in the circumstance of the case the assessee has discharged the onus of proving the alleged payments of commission to guides etc. ?
(2) Whether on the facts and in the circumstances of the case the Tribunal was correct in confirming the order of the A.A.C.s cancelling penalties of Rs. 6094/- and Rs. 500/- imposed under S. 271(1)(c) for the assessment years 1970-71 and 1971-72 respectively ?
2. The Income-tax Officer had during assessment proceedings disallowed the claim of the assessee which was to the effect that he had paid certain sum as commission to guides etc. Consequently, he imposed the penalty of Rs. 6094/ and Rs. 500/- respectively in respect of the two assessment years in question. However, in appeal the Appellate Assistant Commissioner held that on the evidence on record it appeared that the commission to the guides and others was actually paid and was liable to be deducted from the income. Consequently he also can celled the penalties imposed upon the assessee. The Appellate Tribunal has after appreciating the evidence produced in the case affirmed the finding of the Appellate Assistant Commissioner. After the material produced on the record has been considered by the authorities no question of discharging any onus arises. The question whether the commission etc. was actually paid by the assessee is essentially a question of fact and if the same had been decided on the basis of the material on the record it does not give rise to question of law.
3. We are not satisfied that there is any question of law on which a statement of the case can be called for from the Income-tax Appellate Tribunal arises in this case. Rejected.
4. This order shall govern the Income-tax Applications Nos. 960 to 963 of 1977 wherein similar questions have been raised as are sought to be called for behalf of the Commissioner of Income-tax Allahabad for the assessment years 1962-63, 1963-64, 1966-67 & 1971-72. All these application are also rejected.