D. P. Wadhwa ( 1 ) THIS petition under Section 256 (2) of the Income Tax Act, 1961 has been filed by the Revenue for a direction to the Income Tax Appellate Tribunal relevant to the assessment year 1993-84 to state a case and refer 842 to this Court for its opinion the following question stated to be question of law:- "whether, on the facts and in the circumstances of the case, the Hon ble ITAT is correct in law in cancelling penalty of Rs. 2,00,890. 00 imposed under Section 271 (l) (c) of the Act?" ( 2 ) THE assessee firm carried on business in Hing, Jeera, dry fruits etc. , in Delhi and Bombay. The assessee filed its return of income for the previous year relevant to the assessment year 1983-84 on 28. 9. 83 declaring total income at Rs. 71,850. 00. The Income Tax Officer completed the assessment of the assessee on 25. 3. 86 computing that total income of the assessee at Rs. ll,27,429. 00. In the appeal before CIT (Appeals) the said amount was reduced and the assessee was finally assessed at Rs. 3,90,205. 00 on the basis of the order passed by the Income Tax Appellate Tribunal. ( 3 ) THEREAFTER the Income Tax Officer initiated a proceeding against the assessee under Section 271 (l) (c) of the Income Tax Act for furnishing inaccurate particulars of income and on. conclusion of the proceedings ordered for levy of penalty of Rs. 2,00,890. 00 on the following items of concealed income, the addition of which were upheld by the Tribunal in the quantum appeal:- (a) Cost of 3000 kgs. of gum which was purchased outside the books of accounts: Rs. 50,000. 00 (b) Consignment of goods purchased for Rs. 88,115. 00 and sold for Rs. I lac and the sale proceeds not accounted for in the books: Rs. l,00,000. 00 (c) Un-explained cash deposits in Bombay Books: Rs. l,55,000. 00 ( 4 ) AGAINST the aforesaid order of the Income Tax Officer levying penalty on him the assessee appealed to the Commissioner of Income Tax (Appeals) who dismissed the appeal. In the second appeal filed by the assessee before the Tribunal the appeal was allowed holding that there was no justification for treating the aforesaid additions as concealed income or income from undisclosed. sources. Mr. In the second appeal filed by the assessee before the Tribunal the appeal was allowed holding that there was no justification for treating the aforesaid additions as concealed income or income from undisclosed. sources. Mr. Pandey appearing for the Revenue, during the course of his arguments submitted that the Tribunal was not justified in giving a contradictory finding by ignoring its own findings in the quantum appeals in the same set of facts and accordingly a question of law does arise from the aforesaid findings of the Tribunals. In support of his submissions the learned Counsel for the Revenue relied upon the decision of the Rajasthan High Court in the case of Commissioner of Income Tax, Jodhpur v. Smt. Satnam Malik, reported in 120 ITR 309. Relying on the said decision the learned Counsel submitted that in the absence of new additional grounds there was no reason for the Tribunal to depart from its own findings given in the quantum appeal and therefore, the question sought to be raised in this application is a question of law and is liable to be REFERRED TO for opinion of this Court. ( 5 ) WE have considered the ratio of the aforesaid decision of the Rajasthan High Court and in our opinion the ratio of the said decision is not applicable to the facts and circumstances of the present case. We find that the Tribunal in the instant case has arrived at its own conclusion on facts after due and proper consideration of the entire material for and against the assessee and thereafter has 843 come to a definite finding that there was a complete stock tally and all the purchases made including the opening stock were fully accounted for in the sales and in the closing stock and also that the source for the credits in Bombay office was fully explained. In view of the fact that the Tribunal has considered the entire material for and against the assessee, in the instant case, the ratio of the said decision is not applicable to the facts of the present case. ( 6 ) AT this stage we may also appropriately refer to the ratio of the decision of the Apex Court in the case of the Jain Bros. ( 6 ) AT this stage we may also appropriately refer to the ratio of the decision of the Apex Court in the case of the Jain Bros. v. Union of India; reported in 77 ITR 107 wherein it was held that although penalty has been regarded as an additional tax in acertain sense and for certain purposes, it is not possible to hold that penalty proceedings are essentially a continuation of the proceedings relating to assessment where a return has been filed. For all practical purposes proceedings for imposition of penalty, though emanating from proceedings for assessment are independent and separate aspects of the proceedings and therefore, the Tribunal is justifed in considering the evidence as disclosed from records independently without in any way considering the earlier findings in the quantum appeal to be binding or conclusive. ( 7 ) IN that view of the matter,in our opinion, the Tribunal was justified in the instant case to appreciate the evidence as disclosed from the record independently and without being in any way influenced by the earlier findings to be binding on it and conclusive. ( 8 ) THE learned Counsel for the revenue also relied upon a decision of the Apex Court in the case of Commissioner of Income Tax, Madras v. K. R. Sadayappan; reported in Vol. 185 ITR page 49. In our opinion the facts and circumstances of the case are totally distinguishable from the facts of the present case and in our opinion the ratio of the said decision is not applicable. In the said case decided by the Apex Court there was no explanation put forward by the assessee as to where from the extra money had come. In the instant case the records disclosed that there has been an explanation put forward by the assessee and that it is the concluded finding of fact that there was a complete stock tally and all the purchases made including the opening stock were fully accounted for in the sales and in the closing stock. In view of the aforesaid findings of fact that there was no discrepancy in the stock warranting a conclusion that there was a sale of gum without enough of stocks as disclosed by the books, and also in view of the concluded finding that the alleged consignment purchased on 31. 7. 82 for Rs. 88,113. In view of the aforesaid findings of fact that there was no discrepancy in the stock warranting a conclusion that there was a sale of gum without enough of stocks as disclosed by the books, and also in view of the concluded finding that the alleged consignment purchased on 31. 7. 82 for Rs. 88,113. 00 was entered in the books of account and the quantity must have been accounted for in the sale including stocks and also in view of the findings that the credits in books of Bombay office were all on dates subsequent to the dates of withdrawal of the amount from Delhi Office, it cannot be said that the assessee had given no explanation as to where from the extra money had come. ( 9 ) IN view of the aforesaid findings, we cannot but hold that the question sought to be REFERRED TO to this Court of its opinion is based on pure finding of fact which does not give rise to any question of law. Accordingly, the petition stands dismissed. No costs. Petition dismissed.