Judgment 1. On August 1, 1988, the assessee filed its return for the assessment year 1988-89. It returned an income of Rs. 79,270. On November 22, 1988, the assessment under Section 143(1) of the Income-tax Act, 1961, was completed. On March 9, 1989, the assessee filed a revised return disclosing an additional income of Rs. 2,50,000. The assessment was finalised under Section 143(3) of the Act vide order dated March 26, 1990. Penalty proceedings were initiated under Section 271(1)(c) of the Act. Vide order dated August 17, 1990, a penalty of Rs. 1,60,000 was imposed. 2. Aggrieved by the order of penalty imposed by the assessing authority, the assessee filed an appeal. The Commissioner of Income-tax (Appeals) vide order dated March 12, 1991, held that the assessee had filed the revised return and voluntarily surrendered the entire amount "before the investigation unit had given conclusion regarding concealment in this case . . ,". It was also noticed that along with the voluntary return, the assessee had paid the additional tax because it "wanted to buy peace and expected a lenient treatment from the Department in view of the voluntary nature of its admission of mistake in accounts ... ". It was further found that notice "under Section 148 was issued long after the appellant had filed its revised return surrendering the amount of Rs. 2,50,000. Another important factor is that even while finalising reassessment on the second return, the Assessing Officer had accepted the account books after thorough scrutiny". On the basis of these findings, the appellate authority concluded that "this was not a fit case for the levy of penalty under Section 271(1)(c) of the Income-tax Act, 1961". 3. The Revenue challenged the order before the Tribunal. There was difference of opinion. By a majority, the claim of the assessee was accepted and the appeal filed by the Revenue was dismissed. 3. The Revenue challenged the order before the Tribunal. There was difference of opinion. By a majority, the claim of the assessee was accepted and the appeal filed by the Revenue was dismissed. Thereupon, the Revenue filed a petition under Section 256(1) of the Act praying that the following question of law be referred to the High Court for its opinion : "Whether, in the facts and circumstances of the case, the Income-tax Appellate Tribunal was right in deleting the penalty despite the fact as observed by the Judicial Member that the assessee revised the return only when investigations were started by the Department and another fact that the assessee had no funds to purchase the demand drafts as mentioned by the Assessing Officer in the assessment order which was before the Income-tax Appellate Tribunal ?" 4. The matter was examined at length by the Tribunal. It was noticed that the majority had found the following amongst other facts : 1. The Members constituting the Division Bench are agreed on the fact that the drafts although not accounted for on the dates of actual purchase were accounted for subsequently in the books of account. 2. The accountant of the assessee was an old person who did not write books of account on day-to-day basis and the non-accounting of the drafts on the correct dates was squarely attributable to him. 3. The assessee had filed the revised return prior to the date of issue of notice under Section 148 and in the said revised return the sum of Rs. 2,50,000 had been offered for taxation. 4. The assessee had offered the entire amount for taxation without working out the peak and getting some consequential benefit. 5. The proceedings under Section 148 had been initiated pursuant to the statement of one of the partners of the firm recorded by the ADI but in spite of specific opportunities given by the Tribunal to the Department, the learned departmental representative did not file the copy of the said statement. Further, the Tribunal also asked the learned departmental representative to file a copy of the report of the ADI who is supposed to have conducted relevant enquires pertaining to the purchase of drafts but as in the case of the statement of the partner this was also not furnished." 5. Further, the Tribunal also asked the learned departmental representative to file a copy of the report of the ADI who is supposed to have conducted relevant enquires pertaining to the purchase of drafts but as in the case of the statement of the partner this was also not furnished." 5. In view of this factual position, the Tribunal took the view that no question of law requiring a reference to the High Court arose in the case. Consequently, the petition was dismissed. 6. The Revenue has now approached this court through the present petition under Section 256(2) of the Act and maintains that the question as noticed above arises for the consideration of this court and thus the Tribunal should be directed to make a reference. 7. Notice was directed to be issued to the assessee. 8. Learned counsel for the parties have been heard. 9. Mr. Sawhney, appearing for the Revenue, contends that the Tribunal had relied upon the decision of their Lordships of the Supreme Court in Sir Shadilal Sugar and General Mills Ltd. v. CIT [1987] 168 ITR 705. This view has since been reversed by their Lordships in K. P. Madhusudhanan v. CIT [2001] 251 ITR 99 (SC). Thus, a question of law arises for the consideration of this court. On the other hand, Mr. Mittal, learned counsel for the assessee, has contended that concealment of income is primarily a question of fact. The Commissioner and the Tribunal have recorded pure findings of fact and found that there was no concealment of income. Thus, no question of law arises in the case which may require a reference to this court. 10. On consideration of the matter, we find that the Tribunals decision was not entirely based on the view taken by their Lordships of the Supreme Court in Sir Shadilals case [1987] 168 ITR 705. In fact, the majority of the members have found as a fact that the drafts of the total value of Rs. 2,50,000 had been accounted for in the books of account. The accountant of the assessee was an old person and the non-accounting of the drafts on the correct dates "was squarely attributable to him". The assessee had filed the revised return prior to the date of issue of notice under Section 148 of the Act. 2,50,000 had been accounted for in the books of account. The accountant of the assessee was an old person and the non-accounting of the drafts on the correct dates "was squarely attributable to him". The assessee had filed the revised return prior to the date of issue of notice under Section 148 of the Act. The Revenue had not produced a copy of the statement made by the Assistant Director of Investigation and even the report was withheld. The proceedings under Section 148 of the Act were initiated long after the assessee had filed the revised return. It is on the cumulative consideration of these facts that the Tribunal has concluded that the assessee had not concealed the income. Clearly the finding is based on appreciation of evidence and not on the interpretation of the statutory provision. Thus, the finding of fact is not relatable to the decision in Sir Shadilals case [1987] 168 ITR 705 (SC). 11. Mr. Sawhney contends that the view taken by their Lordships of the Supreme Court has been reversed in Madhusudhanans case [2001] 251 ITR 99. It is, undoubtedly, so. However, the factual position in K. P. Madhusudhanan s case [2001] 251 ITR 99 (SC) was materially different. The issue was whether the Tribunal was right in holding that penalty cannot be levied as "the Assessing Officer in the proposal under Section 271(l)(c) had not referred to Explanation 1(B) to Section 271(l)(c)." Their Lordships have taken the view that reference to the substantive provision would include even the Explanation. The ingredients of the Explanation are not required to be incorporated in the show-cause notice. However, this decision has no application to the facts of the present case as neither had the assessee claimed that the order of penalty is vitiated as specific reference to the provision has not been made nor have the Commissioner and the Tribunal allowed its claim on that basis. Thus, the decision is of no avail to the Revenue in the present case. 12. No other point has been raised. 13. In view of the above, we find that no question of law arises which may require an expression of opinion by this court. 14. Resultantly, the petition under Section 256(2) of the Act is dismissed. In the circumstances, there will be no order as to costs.