BERI, C.J.—The six applications under sec. 256(2) of the Income-tax Act, 1961, (hereinafter called the Act) have been presented by the Addl. Commissioner Income-tax Rajasthan Jaipur, against the consolidated order passed by the Income-tax Appellate Tribunal Jaipur, dated 24th February, 1972, praying that the Tribunal be directed to refer to this Court some questions of law which arise in these cases. An identical question, which is framed in D. B. Income-tax Reference Nos. 142/72 and 144/72 reads as under— "Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the assessee was not guilty of fraud or gross or wilful neglect within the meaning of Explanation to sec. 271(1)(c) of the Act?" The question which has been raised in D.B. Income-tax cases Nos. 115 and 146 of 1972 reads : "Whether on the facts and in the circumstances of the case the Tribunal was right in holding that non-maintenance of quantitative details and proper accounts by the assessee would not be tantamount to gross or wilful neglect and the resultant understatement of the income by the assessee will not amount to concealment within the meaning of Explanation to sec. 271(1)(c)?" The question which has been raised in D. B. Income-tax case No. 147 of 1972 is— "Whether on the facts and in the circumstances of the case the Tribunal was right in holding that non-maintenance of proper accounts by the assessee would not be tantamount to gross or wilful neglect and the resultant understatement of the income by the assessee will not amount to concealment within the meaning of Explanation to sec. 271(1)(c)?" 2. It is agreed by the learned counsel that despite difference of phraseology employed in the three questions framed in the above six cases they raise substantially the same question dependant on the interpretation of the Explanation to sec. 271 (l)(c). We agree and accordingly we are disposing of the applications by one order. Let us briefly survey the facts of these cases. 3. The facts in D. B. Income-tax case No. 142 of 1972, No. 143 of 1972 and No. 144 of 1972 are these: The assessee is a registered firm which carries on cut-piece cloth business in retail at Jaipur. For the assessment years 1967-68, 1968-69 and 1969-79, he filed returns showing incomes in different figures. 3. The facts in D. B. Income-tax case No. 142 of 1972, No. 143 of 1972 and No. 144 of 1972 are these: The assessee is a registered firm which carries on cut-piece cloth business in retail at Jaipur. For the assessment years 1967-68, 1968-69 and 1969-79, he filed returns showing incomes in different figures. On the scrutiny of account-books the Income-tax Officer discovered that no stock registers or quantitative details of the opening stock or purchases and sales were kept. In each of the years the account-books were found to be complete and correct but accurate income could not be deduced therefrom due to the method of accounting. The Income-tax Officer added varying amounts to the income returned by the assessee. Appeals were preferred before the Appellate Assistant Commissioner in all the three cases. Eventually the Tribunal in second appeals added different sums of money to the incomes returned. It is not disputed that the income-returned by the assessee in each of these years was less than 80 per cent of the income to which the assessee was assessed by Tribunal. In this state of affairs the Income-tax officer initiated penal proceedings but as the amount of pen-nlty involved was more than Rs. 1000.00 in each of these cases they were referred to the Inspecting Assistant Commissioner Income-tax who in cases Nos.742/72 and 144/72 imposed penalties in the sums of Rs. 3253.00 Rs. 18,040.00 and Rs. 29,000.90 respectively. The matter was taken up to the Tribunal by the assessee in appeal against the penalties and the Tribunal set aside the penalties holding, to quote the words of the Tribunal itself, that it will be seen that the additions which have been sustained are on purely estimate basis, rejecting the trading results and substituting a margin of profit different from that disclosed by the assessee. It is not possible to infer from these additions that the assessee was guilty of fraud or gross or wilful neglect which resulted in the difference between the income returned and the income assessed. Accordingly, we would cancel the penalties levied for these three years and allow appeals......." 4. It is not possible to infer from these additions that the assessee was guilty of fraud or gross or wilful neglect which resulted in the difference between the income returned and the income assessed. Accordingly, we would cancel the penalties levied for these three years and allow appeals......." 4. In D. B. Civil Income-tax case No. 145 of 1972, the assessee is a registered firm which does sarafa business and in the course of which it manufactures and sells silver ornaments, Ornaments also purchased from individuals are sold either in the same condition or after remanufacturing them. For the assessment year 1968-69 the assessee filed a return of Rs. 21,289.00. The Income-tax Officer found that the assessee was not maintaining proper accounts and therefore assessed its income at Rs. 34,800/-applying the gross profit rate at 6.25 per cent on the estimated sale. The Income-tax Officer in the course of assessment proceedings initiated penal proceedings under sec. 271(l)(c) of the Act but as the minimum penalty exceeded Rs. 1000,00, he referred the matter to the Inspecting Assistant Commissioner under sec. 274(2) of the Act. The Inspecting Assistant Commissioner Jaipur Range I, by his order dated 28 9-1970 imposed a penalty of Rs. 13,600.00 under sec. 271(l)(c) for concealment of income. The assessee appealed and the Tribunal by its order dated 21-9-1971 accepted the appeal and quashed the penalty observing "As regards the other appeal concerning penalty, we find that the assessed income was Rs, 34,800.00 as against the declared income of Rs. 21,289 00 All this was on an estimate-basis in trading result. This could not essentially involve conscious concealment of income which would invoke the levy of penalty. It is correct that in the past also substantial increase in the assessees income was made and the Explanation to sec 271 is applicable to the present case. However, the notional increase on estimate-basis in the trading result specially when the same is not Very high, cannot justify a categorical finding that this was a conscious concealment of income," The appeal was accordingly accepted. 5. In D. B. Income-tax case No. 146 of 1972, the facts are that the assessee in this case is a registered firm doing wholesale business in Kirana at Jaipur. For the year 1968 69, he declared his income at Rs. 15,992.00 inclusive of Rs. 5. In D. B. Income-tax case No. 146 of 1972, the facts are that the assessee in this case is a registered firm doing wholesale business in Kirana at Jaipur. For the year 1968 69, he declared his income at Rs. 15,992.00 inclusive of Rs. 6000 00 as estimated additional income On scrutiny the Income-tax Officer found that the accounts were not supported by quantitative details and the sales were not fully vouched. Accordingly he found the income of the assessee of Rs.. 33,494 00. During the assessment proceedings the T. T. O. issued a notice to the assessee to show cause why penalty should not be levied against him under S. 271(1)(c) of the Act for concealment of the income. But as the minimum penalty being leviable was more Rs. 1000.00, the I.T.O. referred the case of penalty to the Inspecting Assistant Commissioner under sec. 274(2) of the Act. The assessee appealed against his assessment and the figure of Rs. 33,494.00, on appeal, was reduced to Rs. 25,088.00. The assessee appealed against the penalty imposed by the Inspecting Assistant Commissioner Income-tax by his order dated 23-12-1970 in the sum of Rs. 9100.00. The Tribunal by its order dated 7th September, 1971, held "We have given our due consideration to the circumstances and find that the addition sustained in the assessees income has been on estimate-basis. The same was on notional basis as it was found that quantitative tally was not available and the account-books otherwise too were not much reliable All this (sic) coupled with the circumstance that in the past, assessment has been made on the estimate-basis and the assessee had also conceded in his declaration that the account version represented by the books was not trustworthy and of its own made on estimated addition of Rs. 6000/- in his income, were justifiable inference to make make additions during the assessment proceedings. However, they would not by themselves be enough to sustain the imposition of penalty specially when the addition is not too high. Such proceedings are of quasi criminal in nature, and something more was required to show that the assessee consciously concealed the particulars of income or furnished inaccurate return. In our view negligence in the maintenance of proper accounts is not synonymous with the concealment of income as envisaged by sec. 271(1) (c). Such proceedings are of quasi criminal in nature, and something more was required to show that the assessee consciously concealed the particulars of income or furnished inaccurate return. In our view negligence in the maintenance of proper accounts is not synonymous with the concealment of income as envisaged by sec. 271(1) (c). It is correct that the Explanation mentioned in this section as incorporated on 1 4-1964 placed the onus of proving that the failure to return the correct income did not arise from any fraud or gross or wilful neglect on the part of the assessee, but the same again cannot be treated at par with the negligence in the maintenance of accounts. We are, therefore, unable to categorically hold that there was conscious concealment of income by the assessee which could justify the levy of penalty." 6. In D. B. Income-tax case No. 147 of 1972, the assessee is a registered firm which mostly deals in precious stones. For the assessment year 1967-68, the assessee filed a return showing its total income at Rs. 91,903.03. On scrutiny the Income tax Officer found that the quantitative details of the purchase and sale have not been maintained by the assessee, and in the absence of such details it was not possible to ascertain whether all the opening stocks and purchases have been accounted for in sale and closing stock. The Income-tax Officer therefore applied sec. 145 of the Act and assessed the income of the assessee at Rs. 1,33,532.00 on estimate-basis by applying the gross profits at 20 per cent on the estimated turnover. This led to an addition of Rs. 41,132.00 to the returned income. The assessee remained content with this assess-ment but the I. T. O. initiated the penal proceedings and because the amount involved was more than Rs. 1000.00 he referred the case to the Inspecting Assistant Commissioner under sec. 274(2) of the Act. The said Commissioner by its order dated 17-7-1970, imposed a penalty of Rs. 15,000.00 under sec. 271(1)(c) of the Act for coacealment of income. 1000.00 he referred the case to the Inspecting Assistant Commissioner under sec. 274(2) of the Act. The said Commissioner by its order dated 17-7-1970, imposed a penalty of Rs. 15,000.00 under sec. 271(1)(c) of the Act for coacealment of income. The assessee appealed and the Income-tax Appellate Tribunal by its order dated 7th September, 1971, ordered "We are, however, of the opinion that though the defects found in the accounts of the assessee justified the additions during the assessment proceedings and the finding given therein was relevant for the present proceedings, the same was not conclusive and could not alone justify penalty. After all, the additions were made on notional basis, and they do not enable us to hold categorically that there was conscious concealment of income. The assessee pointed out before us that though the gross profit rate declared in this year was between 5 to 7 per cent less than the earlier years, the total sales had increased by almost 400 per cent. For this spurt in sales activity, it claims that it had to reconcile with lesser levied rate. In our view, the explanation submitted by the assessee could not be treated totally out of mark. Further, the failure to maintain proper accounts cannot be trated as synonymous for concealment of income for furnishing inaccurate particulars in the Return. 7. It is correct that by virtue of the Explanation added to Sec. 271 on 14.9.1964, the onus of proving the absence of fraud or gross or will full neglect in the filing of the proper return in such circumstances rests with the assessee. However, the addition made in the profits on estimate basis, especially when the addition is not very high vis a vis, the declared income, would not alone justify the levy of penalty. 8. The Department made applications under sec. 256(1) of the Act to the Tribunal to refer the questions of law which it claimed arose in these six cases. The Tribunal by its consolidated order dated 24th February, 1972, rejected all the six applications of the Department.The Tribunal noticed the Explanation added to sec. 271 of the Act with effect from 1-4-1964 and observed by reference to Shri Meenakshi Mills Ltd. vs. Commr. The Tribunal by its consolidated order dated 24th February, 1972, rejected all the six applications of the Department.The Tribunal noticed the Explanation added to sec. 271 of the Act with effect from 1-4-1964 and observed by reference to Shri Meenakshi Mills Ltd. vs. Commr. of Income-Tax Madras(l) that when the finding is one of fact, the fact that is itself an inference from the other basic facts will not alter its character as one of fact. The learned Members of the Tribunal by reference to Basantlal Ompra-kash vs. C.I.T. (Punjab) (2) held that the imposition of penalty had to be found on the material on record and it is essentially a question of fact whether in a certain case penalty is called for or not. The Tribunal also relied on G. I. T. vs. Shankarsons Co (Ker.)(3) which explained the purpose of Explanation in sec. 271 of the Act. The Tribunal particularly noticed that emphasis laid by the Kerala High Court that the presumption could be displaced by the assessee proving that the failure to return the correct income did not arise from any fraud or grose or wilful neglect. The quantum of proof, added the learned Judges of the Keral High Court, necessary would be that required in a civil case namely, preponderance of probability. In this view of the matter, the learned Members observed that they were of the considered opinion that the findings given by the Tribunal while quashing the penalty were entirely based on the facts and inference drawn therefrom and no question of law arose warranting any reference to this Court under sec. 256(1) of the Act. 9. In all these six cases in which reference was refused by the Tribunal the Additional Commissioner of Income-tax has made applications under sec. 256(2) of the Act praying that the Tribunal be directed to refer the above-mentioned questions. 10. Mr. S. K. Mal Lodha learned counsel for the Revenue urged that the Explanation added to sec. 271 of the Act raised a presumption of fraud wilful or gross neglect if the amount returned by ah assessee was less than 80 per cent of the total income which was assessed. 10. Mr. S. K. Mal Lodha learned counsel for the Revenue urged that the Explanation added to sec. 271 of the Act raised a presumption of fraud wilful or gross neglect if the amount returned by ah assessee was less than 80 per cent of the total income which was assessed. It was the duty of the assessee to rebut this presumption, The approach of the learned Tribunal in all these six cases was as if it was for the Department to prove that the assessee was guilty of fraud,gross or wilful neglect. If the approach of the Tribunal was accepted then it would appear that in all cases where income was estimated,no penal proceeding could be taken. If the approach is erroneous, added the learned counsel, it raises a question of law and he placed reliance on Ram-chandra vs. Ramlingam(4) and Omar Salay Mohd. vs. I.T. Commr. (5). He urged that it was not the stage to decide whether the assessee was guilty, or not guilty of fraud, gross or wilful neglect. The short question on which concentration was necessary at this stage was whether a question of law arises or not, in the circumstances in each of these cases. 11. Mr. N. M. Ranka learned counsel for the assessee in all the six cases urged that there was no statutory obligation to maintain books of account, that the assessment in these cases was made under proviso to sub-sec. (1) of sec. 145 of the Act where the account books were treated as complete and correct but as the income was not dedu-cible due to the lack of the supporting data such as of stock register, the income assessed on a basis of estimate and having regard to this circumstance the learned Members of the Tribunal held that no cases of wilful or gross neglect was found against the assessee. The allegation of fraud finds no mention in the order of the Inspecting Assistant Commissioner and, therefore, the simple question which emerges for consideration is whether having regard to Explanation and the presumption raised therein if the Tribunal held that the presumption stood displaced in view of the circumstances of these cases, whether rebuttal was sufficient or not was a question of law or one of fact. Placing reliance on Wali Mohammed vs. M. D Bakash(6), he urged that whether the onus had been discharged or not is primarily a question of fact and it raises no question of law. He also invited our attention to J. K. Cotton Spg. & Wvg. Mills vs. I. T. Commr.(7), and C. I. T. vs. Shankarsons & Go.(3). His further submission was that the displacement of the presumption may be by evidence which was direct or circumstantial or probability of a case and when all these matters were considered by the Tribunal no question of law arose. He made reference to Abdulla Bhai Abdul Kadar vs. Commer, of Inc. Tax(8), C. I. T. vs. Heeralal(9), C. I. T. vs. Vrajlal Manilal & C6.(10) and Basantlal Omprakhsh vs. C. I. T. Punjab(2). Question of negligence is one of fact added the learned counsel and he placed reliance on Raghunandan Gir vs. Deoraj 11), Julien Marret vs. M. D. Khaleel Shirai & Sons(12) and Raruha Singh vs. Achalsingh(15) He further submitted that the reasons given by the Tribunal declining to refer the question to this Court could be looked into for it was the same Tribunal which applied its mind to the circumstances of the case. Penal proceedings, he added, were quasi-criminal in nature and the law should be strictly construed in favour of the subject. He urged that our jurisdiction under sec. 256(2) was merely advisory and it should be sparingly used and only if there was substantial question of law of general importance. He placed reliance on Mathura Prasad vs. Commr. of Inc. Tax(14), Hanuman Motor Service vs. Commr. of Inc. Tax(15) and Shadiram Gangaprasad vs. Commr. of Inc. Tax(16). The Department having not urged that there was no material before the Tribunal to come to a conclusion which it did it cannot now be permitted to do so. And lastly he urged that the Appellate Tribunals in India have been consistently taking the view taken in these six cases by the Tribunal. 12. The short question which emerges at this stage for our consideration is whether any one of these cases raises a question of law which requires to be referred to this Court for answer. In Shri Meenakshi Mills Ltd. vs. Commr. of Inc. 12. The short question which emerges at this stage for our consideration is whether any one of these cases raises a question of law which requires to be referred to this Court for answer. In Shri Meenakshi Mills Ltd. vs. Commr. of Inc. Tax Madras(l) the analysis which the head-note contains succinctly puts the four points by reference to which it could be determined whether the question raised is one of law or not. They read— "(i) When the point for determination is a pure question of law such as construction of a statute or document of title, the decision of the Tribunal is open to reference to the Court u/s. 66(1). (ii) When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final, its decision as to the legal effect of those findings is a question of law which can be received by the Court. (iii) A finding on a question of fact is open to attack under sec 66(1) as erroneous in law when there is no evidence to support it or if it is perverse. (iv) When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact." The Tribunal has expressed the opinion that the questions raised are covered by the fourth proposition. Mr. Lodhas argument, however, is that it is the wrong approach on the question of burden of proof which raises a question of law. Probably the learned counsel hinted that it was the third proposition which was attracted. Strong reliance was placed by the learned counsel on Ramchandra vs. Ramalingam(4) where Their Lordships of the Supreme Court have observed— "On the other hand, if in dealing with a question of fact, the lower appellate court has placed the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as defect in procedure............" In our opinion, this authority does not assist the learned counsel. The onus was not wrongly placed in the cases before us. We shall presently see that it was found to have been discharged. The onus was not wrongly placed in the cases before us. We shall presently see that it was found to have been discharged. Sec. 271(l)(c) which when extracted for our purposes reads— "S. 271(1) If the Income tax Officer or the Appellate Assistant Commissioner in the course of any proceedings under this Act is satisfied that any person— (a)....... (b)....... (c) has concealed the particulars of income or furnished inaccurate particulars of such income he may direct such person shall pay by way of penalty....... (i) to (iii)....... Explanation—Where the total income returned by any person is less than 80 per cent of the total income (hereinafter in this Explanation referred to as the correct income) as assessed under S. 143, his sec. 144 or sec. 147........such person shall, unless he proves that the failure to return the correct income did not arise from any fraud or any gros9 or wilful neglect on his part be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income for the purpose of cl. (c) of the sub-section, .........." In sub-sec. (l)(c) the word deliberately was ommitted and the Explanation was added to sub-sec. (1) by the Finance Act, 1964, with effect from 1st of the April, 1964. The Explanation means that where the total income returned is less than 80 per cent of the total income assessed the assessee shall, unless he proves that the failure to return the correct income did not arise from any fraud or any gross or wilful neglect on his part, be deemed to have been guilty of concealment or furnishing inaccurate particulars. In other words, where the income returned is less than 80 per cent of the income assessed the burden of proof would be on the arsessee to show that this disparity was not the result of any fraud or wilful or gross neglect. We have no doubt in our minds that when the Tribunal set aside the imposition of penalty in these cases it was aware of the existence of the Explanation; the purpose it served and its applicability to the cases in hand. The disparity between the incomes returned and the incomes assessed was less than 80 per cent and they related to the assessment years which were governed by the Explanation, In fact the Tribunal has referred to the Explanation in so many words. The disparity between the incomes returned and the incomes assessed was less than 80 per cent and they related to the assessment years which were governed by the Explanation, In fact the Tribunal has referred to the Explanation in so many words. The Tribunal, however, felt satisfied that the presumption raised by the Explanation stood rebutted because the additions made to the incomes returned were merely estimated or notional and the difference was also not substantial and the Tribunal was not prepared to conclude fraud, wilful or gross neglect. The evidence which satisfied the Tribunal were the facts and circumstances of the cases which it had decided itself. The evidence may be direct or circumstantial or both. Mere state-ment of the assessee may be enough in some cases. What quantum of evidence would iebut a legal presumption in a given set of facts does not admit of any rigid rules. Nor does it raise a question of law. No single fact but it is the cumulative impact of all the facts which affords the answer. We have quoted the relevant excerpts from the order setting aside the penalties. The factors have been considered in the light of the presumption. We may perhaps concede that the conclusions could be differently expressed. But that does not detract from the spirit of the conclusions. In the ultimate analysis the question which confronted the Tribunal was whether the facts and circumstances appearing on the records of the cases were adequate to rebut the presumption of fraud, wilful or gross neglect. The Tribunal found in the negative. The presumption stood rebutted. In Wali Mohammed vs. M. D. Bakash(6) their Lordship of the Privy Council have firmly ruled that the question whether the statutory presumption is rebutted by evidence or not is always a question of fact. We are, therefore, clearly of the opinion that no question of law arises in these cases. 13. Again whether negligence is inferable from a given set of facts and circumstances and whether such negligence is wilful or gross are basically questions of facts and do not raise any question of law. Reference in this connection may profitably be made to Julien Marret vs. M. D. Khaleel Shirazi & Sons(12). 14. The learned counsel for the Revenue argued that if the premises employed by the Tribunal were permitted in no case of estimated income penalties could ever be imposed. Reference in this connection may profitably be made to Julien Marret vs. M. D. Khaleel Shirazi & Sons(12). 14. The learned counsel for the Revenue argued that if the premises employed by the Tribunal were permitted in no case of estimated income penalties could ever be imposed. The apprehension is not well-founded. The Tribunal has not laid down any general proposition. Each case will be regulated by its own facts. At the risk of repetition we may and that it is the totality of circumstances which will determine whether the presumption has or has not been rebutted. Where the accounts are complete i. e. full and correct i. e. true as envisaged by the proviso to sec. 145(1) of the Act that factor could also be considered while judging the questions of fraud or wilful or gross neglect. 15. In the result, in none of the six cases any question of law arises because whether the presu|mption raised by the Explanation to sec. 271(1) (c) has been rebutted or not is essentially a question of fact and we decline to direct the Tribunal to refer any question to us. The applications are rejected with no orders as to costs.