R.N. Misra, J.
1. This is an application under Section 256(2) of the Income-tax Act of 1961 (hereinafter referred to as 'the Act') by the revenue for a direction to the Appellate Tribunal to state a case and refer the following questions said to be of law for the opinion of this court:
'(1) Whether, on the facts and in the circumstances of the case, and on a proper interpretation of Section 64 and Section 139 of the Income-tax Act of 1961 and of the relevant Income-tax Rules, prescribing the form and the manner in which the return of income is required to be furnished under the latter section, the assessee had an obligation to disclose in thereturn of income furnished by him the income from dividends on shares standing in the names of his wife and the minor son ?
(2) If the answer to question No. (1) is in the affirmative, then whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that no penalty could be imposed under Section 271(1)(c) of the Income-tax Act, 1961?'
2. The relevant year of assessment is 1962-63. The Inspecting Assistant Commissioner proceeded to impose penalty under Section 271(1)(c) of the Act on a finding that the following incomes had been concealed by the assessee while making his return for the year:
Rs.i.Dividend on shares in the name of wife, Smt. Cyan Patnaik31,050ii.Dividend on shares in the name of minor son 3,452iii.Cash credits assessed as income from undisclosed sources40,000iv.Estimated addition as income from undisclosed sources on account of personal expenses unaccounted for18,500
3. Addition of these amounts as income in the hands of the assessee has become final. The Inspecting , Assistant Commissioner found that there was concealment and accordingly imposed penalty of Rs. 20,000.
4. The assessee appealed to the Tribunal. The Tribunal came to hold:
'In our view the contention of the assessee regarding non-disclosure of dividend income in the names of his wife and minor son is sound and acceptable. The departmental representative's objection is demolished by the decision in Radheshyam Ladia v. Income-tax Officer, Ward 'B', District : 82ITR247(Cal) cited by the departmental representative where an identical question arose for consideration and it was held that the assessee was under no obligation to disclose incomes which are liable to be included by virtue of the provisions of Section 64 and the position is sound whether in the new Act or under the old Act. Their Lordships also considered the fact that the footnote appended to the Form of return pursuant to the Rules framed under the Income-tax Act requires an assessee to make disclosure of income liable to be included under sections 60 to 64 of the Act of 1961.
As regards the cash credits, the penalty is not sustainable in view of the fact that the department has not proved either in the assessment or in the penalty proceedings that the impugned amount represented income of the assessee and it was concealed. The decision of the Supreme Court in Anwar Ali's case : 76ITR696(SC) applies.'
5. So far as the failure to disclose income of the wife or the minor child, we are not in a position to take a different view. The decision of the Supreme Court in the case of V.D.M. HM. M. HM, Muthiah Chettiar v. Commissioner of Income-tax  74 ITR 103 and of the Calcutta High Court in the case of Radheshyam Ladia v. Income-tax Officer, do clearly, support the assessee's stand. The question which has been posed does not cover the other two items of income, concealment whereof had led to imposition of penalty in the hands of the Inspecting Assistant Commissioner. Assessee's counsel is, therefore, justified in contending that we need not examine the correctness of the Tribunal's decision in regard to those items relying on the Supreme Court decision inAnwar Ali's case.
6. In this view of the matter, the application is groundless and must berejected. We make no order as to costs.
K.B. Panda, J.
7. I agree.