Judgment G.C.Bharuka and S.K.Chattopadhyaya JJ. 1. In this case a statement of case was called for by this Court under Section 256 (2) of Income-tax Act, 1961 (in short the Act) on the following question of law: Whether on the facts and in the circumstances on the case the Tribunal was right in deleting the penalty amount to Rs. 15,074 imposed under Section 271(1)(c) read with the Explanation. 2. This reference pertains to the assessment year 1975-76. The assessee had returned its income at Rs. 37,775. Pursuant to assessment addition of Rs. 37,701 was made to the returned income by the Income-tax Officer. But ultimately going up to Tribunal the additions were sustained only to the extent of Rs. 15,094. The additions comprised under two heads, namely, Rs. 3000 being unexplained cash credits and Rs. 12,074 as income from other sources. Keeping in view the additions the Inspecting Assistant Commissioner levied 100% penalty being Rs 12,094 under Sec. 271(1)(c) of the Act. But the said order of penalty was cancelled by the Tribunal by holding that in view of the law laid down by the Supreme Court in the case of Commissioner of Income-tax, Weft Bengal V/s. Anwar Ali 76 ITR 696, since the Department had failed to prove that the assessee was guilty of concealment of any income the same is not sustainable. 3. After hearing the learned Counsels for the parties, we are clearly of the view that the Tribunal has gone wrong in placing reliance on the case of C.I.T. V/s. Anwar Ali (Supra), it so because during the period under consideration that explanation to Sec. 271(1) (c) of the Act had come into operation and since in the present case the total income returned by the assessee was less than 80% of the total income as assessed, the onus was on the assessee to prove that the failure to file the correct income did not arise from any fraud or any gross or wilful neglect on his part. 4. In the case of Commissioner of Income-tax V/s. Mussdilal Ram Bharose reported in -- it has been held by the Supreme Court as follows: The position, therefore, in law is clear. 4. In the case of Commissioner of Income-tax V/s. Mussdilal Ram Bharose reported in -- it has been held by the Supreme Court as follows: The position, therefore, in law is clear. If the returned income is less than 80% of this assessed income, the presumption is raised against the assessee that the assessee is guilty of fraud or gross or wilful neglect as a result of which he has concealed the income but this presumption can be rebutted. The rebuttal must be on materials relevant and cogent. It is for the fact finding body to judge the relevancy and sufficiency of the materials, if such a fact finding body, bearing the aforesaid principles in mind, comes to the conclusion that the assessee has discharged the onus, it becomes a conclusion of fact. No question of law arises. 5. In the case before us from the order of the Tribunal it appears that the assessee had rendered sonic explanations with regard to both the items of additions. But the Tribunal without applying itself to the said explanations of the assessee, has deleted the penalty on a presumption that the onus to prove concealment lay on the Department. The Tribunal should have considered the explanation of the assessee in the light of the law as in force at the material time and should have accordingly adjudged the validity of the order of penalty passed by the Inspecting Assistant Commissioner, 6. In view of the aforesaid discussions, the questions as referred is answered in negative. No order as to costs. 7. Let a copy of this order be remitted to the Income-tax Appellate Tribunal, Patna Bench.