JUDGMENT : 1. This is an application of the revenue u/s 256(2) of the I.T. Act of 1961 (hereinafter referred to as "the Act"), for a direction to the Appellate Tribunal to state a case and refer the following question said to be of law for the opinion of the court : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee had discharged the onus placed upon it by the Explanation to Section 271(1)(c) and in deleting the penalty observing that no material was brought on record by the revenue to establish that the amount added to the declared income represented the assessee's income and that the assessee had consciously concealed it and whether deletion of penalty was justified ?" 2. The assessee is a registered firm and the relevant year of assessment is 1972-73. The assessee carried on contract business during the year and received a gross sum of Rs. 9,38,673. Out of it, a deduction of Rs. 4,86,665 was claimed towards payment to sub-contractors and, on the remainder, the assessee showed an income of 121/2% which it offered for assessment. During the assessment proceedings, the assessee failed to establish that it had any sub-contractors and the claim of deduction towards payment to them was not proved. After the quantum appeal was finalised, penalty u/s 271(1)(c) read with Section 274(2) of the Act was levied by the IAC at Rs. 50,000. On. the assessee's appeal, the penalty has been knocked off by the Tribunal. 3. In the second appeal, the Tribunal observed : "...In the quantum appeal, the Tribunal was called upon to draw an inference from the facts then before it as to whether the agreements with the sub-contractors were acted upon. It drew a particular inference. It is well-settled that in penalty proceedings the assessee is entitled to claim a fresh look at the evidence on record. On giving such a fresh look, we find that the claim of the assessee was not entirely improbable in the facts and circumstances of the case. We find that the physical payments to the sub-contractors has not been doubted. Besides, there were certain facts in this case which were not placed before the Appellate Tribunal at the time of hearing of the quantum appeal. We find that the physical payments to the sub-contractors has not been doubted. Besides, there were certain facts in this case which were not placed before the Appellate Tribunal at the time of hearing of the quantum appeal. These facts are that the payments to the sub-contractors were made mostly by cheques, some of which were account payee cheques, and, secondly, one of the sub-contractors was separately assessed in his own right by the department in the previous and the subsequent assessment years and the other sub-contractors were so assessed in the subsequent assessment year. The learned counsel for the assessee took us through the depositions of both the sub-contractors and emphasised that they have to be read as a whole and the answers given by the deponents were to be appreciated in the context in which they were given. He has pointed out that Sri Ramesh Chandra Sinha was not asked about the possession of his copy of the agreement at all while Sri Nanda Kishore Barik has stated that his copy of agreement might be available in the camp. Taking the totality of the circumstances into consideration, we are of the opinion that the factum of payment to the sub-contractors has not been established to be incredible. In this view of the matter, we come to the conclusion that the assessee must be deemed to have discharged the onus cast on it by the Explanation to Section 271(1)(c) of the Act..." 4. The Tribunal rightly placed the burden on the assessee in terms of the Explanation and considered the set of facts to find out whether that burden had been discharged. It is a settled position in law that whether the burden in a given case is discharged on a set of facts is a question of fact. We are, therefore, not inclined to agree with the revenue that a question of law arises in this case. The application fails and is dismissed.