G. S. Singhvi, J. - (1.) IN this petition filed under Section 256(2) of the INcome-tax Act, 1961 (for short, "the Act"), the petitioner has prayed for directing the INcome-tax Appellate Tribunal, Amritsar Bench, Amritsar (for short, "the Tribunal"), to refer the following question of law for the opinion of this court: "Whether, on the facts and in the circumstances of the case, the INcome-tax Appellate Tribunal was right in law in confirming the order of the Commissioner of INcome-tax (Appeals) deleting the penalty levied under Section 271(l)(c) of the Act ?"
(2.) THE assessee is running a rice sheller. For the assessment year 1988-89, it filed a return of income declaring a net loss of Rs. 26,566. THE Assessing Officer did not accept the return and made the assessment by making addition of Rs. 2,85,253. He also initiated penalty proceedings under Section 271(l)(c) of the Act and imposed penalty of Rs. 90,000. THE appeal filed against the order of assessment was partly allowed by the Commissioner of Income-tax (Appeals), Bhatinda (for short, "the CIT (Appeals)"), who deleted the additions to the tune of Rs. 81,254. THE appeal filed by the assessee against the order of penalty was accepted by the Commissioner of Income-tax (Appeals) with the observation that the Department has failed to prove positive act of concealment on the part of the assessee. THE Tribunal has upheld the appellate order with the following observations : "After considering all the submissions, we are in agreement with the submissions of learned counsel for the assessee which has rightly been appreciated by the learned Commissioner of Income-tax (Appeals) who has reproduced the ratio of the jurisdictional High Court in para. 5 of his order. THE Punjab and Haryana High Court in the case of CIT v. Metal Products of India [1984] 150 ITR 714 has observed that the addition if made on estimate under the proviso of Section 145(1) by adopting the view that gross profit shown in the books of account was too low, then that does not automatically lead to the conclusion that there was failure to return the correct income by means of fraud or gross or wilful neglect. THE learned Commissioner of Income-tax (Appeals) has rightly concluded that the burden was on the Department to prove that there was positive act of concealment. In the case in hand, the Assessing Officer simply estimated the yield of super phak as well as of chhilka and estimated the price of chhilka and made the addition but that estimate will not lead to penalty ipso facto and the Commissioner of Income-tax (Appeals) in view of the decision of the High Court's dictum rightly decided the appeal in favour of the assessee and we do not find any force in the appeals of the Revenue and the same are dismissed." After hearing learned counsel for the Revenue and perusing the record, we are satisfied that the view taken by the Commissioner of Income-tax (Appeals) and the Tribunal that the Department has failed to prove the concealment of income by the assessee does not suffer from any legal error and no referable question of law arises in this case. Hence, the petition is dismissed. ;