M. K. SHARMA ( 1 ) THESE two petitions under Section 256 (2) of the Income Tax Act (hereinafter referred to as the Act) involve identical facts and common questions and accordingly we propose to dispose of both the petitions by one common judgment. ( 2 ) I. T. C. 132/1990; For the assessment year 1967-68 the original return of income was filed by the assessee. However, the assessee neither in the original return nor during the course of the assessment proceedings for the relevant year disclosed before the Assessing Officer that part of its plant and machinery on which it had claimed depreciation and development rebate were installed at the premises of a sister concern of the assessee and were not used by it for the purpose of its own business. The aforesaid fact however, came to the notice of the Income Tax Officer subsequently, as a result of the investigations made in the course of assessment proceedings for the assessment years 1971 -72. Consequently the Income Tax Officer looked into the claim of depreciation and development rebate which had been allowed to the assessee at the time of the original assessment for the aforesaid assessment year 1967-68. During such scrutiny it was found that the depreciation and development rebate were wrongly and excessively claimed and allowed to the assessee for t he aforesaid assessment year. The Income Tax Officer, therefore, being satisfied, reopened and made reassessment in respect of the assessee for the aforesaid assessment year under Section 147-A/148 of the Act in which the depreciation and development rebate which was allowed to the assessee in the original assessment was withdrawn. The Commissioner of Income Tax (Appeals) as well as the Tribunal before whom the appeals were filed by the assessee upheld the order of the Income Tax Officer and confirmed the aforesaid disallowances/additions. ( 3 ) THE Income Tax Officer also initiated penalty proceedings against the assessee under Section 271 (l) (c) and levied penalty amounting to Rs. 12. 00 lacs holding, inter alia, that the assessee had deliberately concealed the material fact regarding the use of part of the machinery by its sister concern. ( 3 ) THE Income Tax Officer also initiated penalty proceedings against the assessee under Section 271 (l) (c) and levied penalty amounting to Rs. 12. 00 lacs holding, inter alia, that the assessee had deliberately concealed the material fact regarding the use of part of the machinery by its sister concern. On appeal by the assessee the Commissioner of Income Tax (Appeals) cancelled the penalty levied by the Income Tax Officer and the Tribunal on an appeal filed by the Revenue upheld the order of the Commissioner of Income Tax (Appeals) canceling the penalty levied by the Income Tax Officer. The Revenue, being aggrieved,. filed an application under Section 256 (1) of the Act seeking for a reference to this court which was rejected by the Tribunal on the ground that no referable question could be said to have arisen out of the order of the Tribunal. Accordingly, the Revenue has filed the present petition seeking to refer the following questions to this court for its opinion for the assessment year 1967-68: - (1) Whether on the facts and in the circumstances of the case, the ITAT was correct in law in cancelling penalty u/s. 271 (l) (c) imposed at Rs. 6,50,000/- ? (2) Whether on the facts and in the circumstances of the case, the ITAT was correct in law in holding that there was no fraud or gross or wilful neglect on the part of the assessee in claiming depreciation and development rebate on some plants and machinery installed in the premises of a sister concern and accordingly it was not liable for any penalty under section 27 l (l) (c)? (3) Whether on the facts and in the circumstances of the case, the ITAT was correct in law in taking a different stand than the one taken by it in the assessment year 1975-76 where it confirmed the levy of penalty under identical facts? I. T. C. 133/1990; The assessee through this petition seeks for a direction to the Income Tax Appellate Tribunal to state a case and refer to this court for its opinion the following questions stated to be questions of law relevant to the assessment year 1972-73 ). I. T. C. 133/1990; The assessee through this petition seeks for a direction to the Income Tax Appellate Tribunal to state a case and refer to this court for its opinion the following questions stated to be questions of law relevant to the assessment year 1972-73 ). Since the facts involved in the present petition are identical with that of the case relating to the assessment year 1967-68, it is not necessary for us to reiterate the facts relevant to the present assessment year once again herein. (1)Whether on the facts and in the circumstances of the case, the ITAT was correct in law in cancelling penalty u/s. 271 (l) (c) imposed at Rs. 12,00,000/-? (2) Whether on the facts and in the circumstances of the case, the ITAT was correct in law in holding that there was no fraud or gross or wilful neglect on the part of the assessee in claiming depreciation and development rebate on Plant and Machinery installed in the premises of two sister concerns and in not showing the closing stock of stores and spare items debited in machinery repairs account? (3) Whether on the facts and in the circumstances of the case, the ITAT was correct in law in taking a different stand than the one taken by it in the assessment year 1975-76 where it confirmed the levy of penalty on identical facts? ( 4 ) IT is not disputed before us that in a similar petition in respect of the same assessee for the assessment year 1970-71 which was registered as I. T. C. 9/1991, this court declined to call for a reference on identical questions and dismissed the petition. As against the said order passed by this court the Revenue preferred a Special Leave Petition before the Supreme Court,commissioner of Income Tax Vs. J. K. Synthetics: SLP (Civil) No. 17292/1992, which was dismissed on 17. 12. 1992, reported as [1993] 199 ITR (Statute) 81. Another petition was filed by the Revenue under Section 256 (2) of the Act in respect of the same assessee on similar facts in respect of the assessment year 1968- 69 and registered as ITC 11 /1991. This court by its order dated 2. 5. 1991 dismissed the said petition holding that no question of law arises. Another petition was filed by the Revenue under Section 256 (2) of the Act in respect of the same assessee on similar facts in respect of the assessment year 1968- 69 and registered as ITC 11 /1991. This court by its order dated 2. 5. 1991 dismissed the said petition holding that no question of law arises. We are told that no Special Leave Petition has been preferred by the Revenue as against the aforesaid order of dismissal of; ( 5 ) MR. Rajendra, the learned counsel appearing for the Revenue however, submitted before us that this court dismissed the aforesaid petitions filed by the Revenue under Section 256 (2) of the Act seeking for reference to this court, on similar questions in respect of the assessment orders 1970-71 and 1968-69 relying upon the sole ground that for the assessment year 1971 -72 the reference application filed by the Department before the Tribunal under Section 256 ( 1) of the Act was dismissed and the application before the Allahabad High Court against that order under Section 256 (2) was also dismissed. Learned counsel submitted that as against the decision of the Allahabad High Court in respect of the said assessment order 1971-72 a Special Leave Petition was preferred before the Supreme Court in which Special Leave Has been granted on 1. 9. 1994 to the Revenue to appeal against the said order. The learned counsel further submitted that in view of the aforesaid fact that the Special Leave Petition in respect of the assessment, year 1971 -72 has been admitted by the Supreme Court, this court should direct the Tribunal to refer the questions raised in the present petition to this court for its opinion. His further submission was that in view of the insertion of the explanation introduced in 1964 to Section 271 (1) (c) of the Act a presumption of law has to be drawn against the assessee and there being a finding of the Tribunal that the assessee had concealed the particulars of his income or furnished inaccurate particulars of his income, questions of law do arise in the present case from the aforesaid questions proposed in the present petition by the Revenue. In support of its contention the learned counsel heavily relied on the ratio of the decision of the Supreme Court in Commissioner of Income Tax Vs. Jeevan Lal Shah: reported in (205) ITR 244. In support of its contention the learned counsel heavily relied on the ratio of the decision of the Supreme Court in Commissioner of Income Tax Vs. Jeevan Lal Shah: reported in (205) ITR 244. ( 6 ) MR. P. N. Monga, the learned counsel appearing for the assessee however, submitted before us that the ratio of the decision laid down in 205 ITR 244 reiterates the same principle as was laid down in the Commissioner of Income Tax Vs. Mussaddi Lal Ram Bharose: reported in 165 ITR 14. He further submitted that the findings arrived at by the Tribunal in respect of the penalty proceedings relevant to the present assessment year are pure findings of fact and no referable question arises therefrom and the present petition is liable to be dismissed. An explanation to sub-section 1 of Section 271 was added by the" Finance Act, 1964w. e. f. 1. 4. 1964. The said explanation reads as follows: - "explanation.- Where the total income returned by any person is less than eighty percent of the total income (hereinafter in this Explanation referred to as the correct income) as assessed under Sect ion 143 or Section 144 or Section 147 (reduced by the expenditure incurred bonafide by him for the purpose of making or earning any income included in the total income butwhich has been disallowed as a deduction), such person 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 concealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of clause (c) of this sub-section. " ( 7 ) THE aforesaid explanation apparently creates a presumption of law but the said presumption is a rebuttable presumption. In the case of Jeevan Lal Shah (supra) the Supreme Court had succinctly laid down the presumption of law that is created by the explanation in the following words: - "where the total income returned by any person is less than 80 per cent of his total assessed income, such person shall be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of clause (c) unless he proves that. he failure to return the correct income did not arise from any fraud or any gross or wilful neglect on his part. The explanation, thus, shifts the burden of proof to the assessee in the situation covered by it. Once the returned income is shown to be less than 80% of the total income assessed, the presumption comes into play and then the burden shifts to the assessee to establish that his failure to return the correct income was not on account of any fraud or gross or wilful neglect on his part. If he fails to establish the same, the presumption will become a finding - and it would be open to the authority to levy the penalty. But if the assessee establishes that his failure to return the correct income was not on account of any fraud or any gross or wilful neglect on his part, it is evident, no penalty can be levied. " ( 8 ) THE Supreme Court has further held that even after the amendment of 1964, the penalty proceedings apparently continued to be penal proceedings, and the question whether the assessee has concealed the particulars of his income or has furnished inaccurate particulars of his income continues to remain a question of fact. While deciding the aforesaid case the Supreme Court has further held that the cases to which the aforesaid explanation is attracted have to be decided in the light of the law enunciated in Mussaddi Lal Ram Bharose s case (supra) and C. I. T. Vs. While deciding the aforesaid case the Supreme Court has further held that the cases to which the aforesaid explanation is attracted have to be decided in the light of the law enunciated in Mussaddi Lal Ram Bharose s case (supra) and C. I. T. Vs. K. R. Sadayappan; (1990) ( 9 ) WE have also noticed the decision of Mussaddi Lal Ram Bhamse s case (supra) wherein also the Supreme Court also considered the effect of the explanation to the provisions of Section 271 (1) and on consideration thereof came to the conclusion that the moment the stipulated difference was there the onus to prove that it was not the failure of the assessee or Craud of the assessee or neglect of the assessee that caused the difference shifted to the assessee but it has to be borne in mind that though the onus shifted, the onus that was shifted was rebuttable and that if in an appropriate case, the Tribunal or the fact finding body is satisfied on cogent and relevant material on record and draws an inference therefrom that the assessee was not guilty of fraud or any gross or wilful neglect then in such a case, the assessee cnanot come within the mischief of the section and suffer the imposition of penally. The Supreme Court in the said case further held that the Tribunal s conclusion on relevant and sufficient material that the assessee had discharged its onus to prove that the difference was not owing to gross or wilful neglect or fraud on his part is a conclusion of fact and no question of law arises therefrom. ( 10 ) WHEN we examine the records of the present case in the light of the aforesaid principles laid down in the decisions oflhe Supreme Court we find that the Tribunal in the present cases has recorded a conclusive finding that the assessee had successfully established that the claims were made bonafide for the assessment year in question and that there was absence of fraud or gross orwilful neglect on its part. The Tribunal has further come to a conclusive finding that a presumption of concealment had been duly rebutted by the assessee by giving a plausible and cogent explanation. The Tribunal has further come to a conclusive finding that a presumption of concealment had been duly rebutted by the assessee by giving a plausible and cogent explanation. In the light of the aforesaid findings recorded by the Tribunal in the present cases relevant to the assessment years 1967-68 and 1972-73 that the assessee had discharged its onus to prove that the difference was not owing to fraud or gross orwilful neglect was a conclusion of fact recorded by the Tribunal and in that view of the matter no question of law arises therefrom as has been held in Mussaddi Lal Ram Bharose s case (supra ). ( 11 ) MR. Rajendra, the learned counsel for the Revenue also submitted before us that for the assessment year 1975-76 in respect ofthe same assessee the Tribunal itself referred similar questions of law forthe opinion of this court and therefore, there was no occasion for the Tribunal to take a different and diametrically opposite view in respect of the relevant assessment years in question in the present cases on almost identical and similar facts. ( 12 ) MR. Rajendra also drew our attention to two other cases decided by this court in CIT Vs. Shama Magazine; reported in 213 ITR 64, and CIT Vs. Thakur Dass; 213 ITR 205. We have considered (he radio laid down by this court in the aforesaid two decisions, which are primarily based on the aforesaid two decisions decided by the Supreme Court in Jeevan Lal Shah s case (supra) and Mussaddi Lal Ram Bharose s case (supra ). ( 13 ) WE have examined the records in order to appreciate the contention ofthe learned counsel for the Revenue but in our opinion the said submission is devoid of force. In respect of the assessment year 1975-76 I he Tribunal has categorically recorded a conclusive finding of fact that the explanation given by the assessee for claiming depreciation was clearly false and opposed to facts and reality. The Tribunal further recorded a conclusive finding of fact in that case that the explanation given by the assessee in respect of the aforesaid claim could not be held to be bonafide. We may mention that no such finding of fact is recorded by the Tribunal in the present cases as is evident from the record of the present cases. The Tribunal further recorded a conclusive finding of fact in that case that the explanation given by the assessee in respect of the aforesaid claim could not be held to be bonafide. We may mention that no such finding of fact is recorded by the Tribunal in the present cases as is evident from the record of the present cases. ( 14 ) ACCORDINGLY, we hold that the findings recorded by the Tribunal in respect of both the cases relevant to the assessment years 1967-68 and 1972-73 are findings of fact and no question of law arises in the facts and circumstances as found by the Tribunal. ( 15 ) IN the result both these petitions have no merit and are accordingly, dismissed, but without any costs.