: D. S. Tewatia, J. - The respondent-assessee firm carries on business of the purchase and sale of iron and steel goods besides running a re-rolling mill and for the asst. yr. 1963-64 was saddled with an additional amount of Rs. 63,081 being unexplained investment in stock outside the books of account. The said addition was upheld right upto the ITAT. Thereafter, the ITO initiated penalty proceeding u/s. 271(1)(c) of the IT Act (hereinafter referred to as the Act) and referred the case to the IAC u/s. 274(2) of the Act who imposed Rs. 14,000 by way of penalty. This order was set aside on appeal at the instance of the assessee by the Tribunal vide its order dt. 7-10-1976. The revenue sought the following question to be referred to this court :
'Whether, on the facts and the circumstances of the case, the Tribunal is correct in law in cancelling the penalty levied u/s. 271(1)(c) by the IAC ?'
2. The Tribunal declined to refer the said question as in its opinion in the circumstances of the case no question of law arose. The present petition at the instance of the revenue has been filed u/s. 256(2) of the Act.
3. The Tribunal based itself while declining to refer the proposed question for the decision of this court on the ratio, inter alia, of CIT v. Anwar Ali : 76ITR696(SC) , in which their Lordships have held that if during the penalty proceedings the only circumstance that is before the authority is the finding in assessment proceedings rejecting the explanation offered by the assessee to be false, then that is not sufficient to hold that the concealment of income amounts to conscious concealment. As to whether on the facts and circumstances of the given case the concealment is conscious or deliberate is a question of fact and not the question of law.
4. Mr. Ashok Bhan, appearing for the revenue, has, however, drawn our attention to two decisions of this court reported as Shiv Narain Khanna v. CIT, Patiala and Kedar Nath Sanwal Dass v. CIT, Punjab . In these two cases the decision of their Lordships in Anwar Alis case (supra) was not even noticed.
5. Once it is held that the Tribunal had correctly put onus on the department, then whether the department had discharged the onus is a question of fact and not of law. Accordingly, we hold that no referable question of law arises and, therefore, we dismiss the present petition. No costs.