Judgment :- ChitraVenkataraman, J. 1. The following are the substantial questions of law raised by the Revenue in this Tax Case Appeal, relating to the Assessment Year 2001-02: (a) Whether the failure to advert to clause "B" of Explanation 1 to Section 271(1) of the Income Tax Act had vitiated the order of the Income Tax Appellate Tribunal when it held that when disclosure is made voluntarily, there is no scope of levying penalty under Section 271(1)(c) of the Act? (b) Since Clause "B" of Explanation 1 to Section 271(1) of the Income Tax Act casts the initial burden on the assessee to prove the essential ingredients of that clause and when there is a failure on the part of the assessee to discharge that burden, has not the Income Tax Appellate Tribunal committed an error of law in setting aside the order of the authorities below levying penalty? 2. It is seen from the facts narrated herein that the assessee herein agreed for an addition of Rs.28,56,884/-. The assessment was accordingly made. It is a matter of record that there was also a reassessment proceedings wherein, the assessee offered further amount. Taking the view that that the explanation offered by the assessee as regards the payment of commission was not properly explained, the expenditure claimed was rejected, to make it as an income for the purpose of assessment. 3. We may note herein that the assessee himself agreed for the addition on the ground that the parties to whom it had offered commission did not respond to the notices sent or that the notices sent were returned by the postal authorities with an endorsement "no such person". Thus, on the ground that the assessee could not produce the parties to substantiate the claim on payment of commission and the assesment completed on the returned income towards assessment, proceedings were initiated for levy of penalty. the assessee resisted the proceedings and stated that the mere consent given for an addition of the amount to the returned income, did not amount to concealment. the assessee resisted the proceedings and stated that the mere consent given for an addition of the amount to the returned income, did not amount to concealment. It also pointed out that they were small traders in paper and boards compared to other dealers; they had neither concealed any income nor resorted to any evasion of tax and that taking into account their voluntary and honest act of offering all the credits for which they could not produce necessary evidence by bringing the creditors and the agents, the assessee sought for dropping of the proceedings. The Assessing Officer, however, rejected the said contention. Though the assessee came forward to offer the expenses claimed for assessment, confronted with the fact that they could not prove their claim and there was no evidence, the assessee had offered the income for assessment. The Department claimed that when the assessee himself had conceded that a particular item of income had been concealed by him and offered such income for assessment, there is nothing left for the Department to prove the aspect of concealment. Thus, placing reliance on the decision reported in [1971] 79 ITR 63 (Delhi) (Durga Timber Works Vs. CIT), [1985] 153 ITR 376 (Mad) (H.V.Venugopal Chettiar Vs. CIT) and 251 ITR 99 (SC) (K.P.Madhusudanan Vs. CIT), the Assessing Officer confirmed the levy of penalty. 4. Aggrieved by this, the assessee went on appeal before the Commissioner of Income Tax (Appeals), who confirmed the assessment. Aggrieved by the same, the assessee went on further appeal before the Tribunal. The Tribunal pointed out that when the assessee had agreed for the amount to be assessed on the stated grounds but countered the penalty proceedings on the ground that there was no concealment by him, the Assessing Officer should have rendered a finding on the aspect of concealment. In the absence of any material to prove the concealment in the penalty order, the levy of penalty could not be sustained. Aggrieved by this, the Revenue is on appeal before this Court. 5. Learned Standing Counsel appearing for the Revenue strenuously contended that when the assessee had not taken efforts to substantiate its claim on the expenses to the creditors or the agents who had received the commission and offered the amount for assessment, it was clear that the returns filed were incorrect and hence, there was concealment of particulars of the income furnished. Going by the conduct of the assessee in offering the amount for assessment, the concealment stood proved and consequently, the order of the Tribunal has to be set aside. 6. Per contra, learned counsel appearing for the assessee reiterated the contention that mere consent for addition to the returned income would not automatically lead to an inference that there was concealment of income by giving inaccurate particulars. He submitted that although the assessee had produced necessary confirmation letter, at the time of assessment, since the parties had failed to respond to the notices, realising the difficulties in service at the distance of time at which the assessment was taken, the assessee agreed for an assessment on the amount claimed as expenses. 7. Referring to the decision of the Apex Court reported in [2010] 322 ITR 158 (CIT Vs. Reliance Petroproducts Pvt. Ltd. (SC), learned counsel submitted that to attract penalty, the Revenue should prove that the claim made was not sustainable in law and that if the assessee had made a conscious concealment of the particulars of income, the Apex Court pointed out that in oder to expose the assessee to penalty, the Revenue should show that there was contumacious conduct on the part of the assessee in suppressing the income in the return. Thus the Apex Court held that "in order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision cannot be invoked." Referring to the decisions reported in [2007] 291 ITR 519 (SC) (Dilip N. Shroff Vs. Joint CIT) and [2008] 306 ITR 277 (Union of India Vs. Dharmendra Textiles Processors) (SC), the Apex Court pointed out that the explanation must be preceded by a finding as to how and in what manner the assessee had furnished the particulars of his income and to impose penalty, element of mens rea was essential. Explaining the term "conceal" and "inaccurate", the said decision overruled the decision reported in [2007] 291 ITR 519 (SC) (Dilip N. Shroff Vs. Joint CIT) only as regards the mens rea to be an essential ingredient in the levy of penalty. Explaining the term "conceal" and "inaccurate", the said decision overruled the decision reported in [2007] 291 ITR 519 (SC) (Dilip N. Shroff Vs. Joint CIT) only as regards the mens rea to be an essential ingredient in the levy of penalty. The Apex Court held, the words "inaccurate particulars" mean "not accurate", "not exact or correct", "not according to truth" and "erroneous", that the mere making of a claim, which is not sustainable in law, by itself, would not amount to furnishing inaccurate particulars regarding the income of the assessee and that such a claim made in the return cannot amount to furnishing inaccurate particulars. The Apex Court further held as follows: " Merely because the assessee had claimed the expenditure, which claim was not accepted or was not acceptable to the Revenue, that by itself would not, in our opinion, attract the penalty under section 271(1)(c). If we accept the contention of the Revenue then in case of every return where the claim made is not accepted by the Assessing Officer for any reason, the assessee will invite penalty under section 271(1)(c). That is clearly not the intendment of the Legislature. " 8. Applying the decision of the Apex Court [2010] 322 ITR 158 (CIT Vs. Reliance Petroproducts Pvt. Ltd. (SC) to the facts of the case herein, we have no hesitation in confirming the order of the Tribunal which are shown on the facts found by the Tribunal. In the result, the Tax Case Appeal stands dismissed. No costs.