JAWAHAR LAL GUPTA, J. - (1.) THIS is a petition under S. 256(2) of the IT Act, 1961. The Revenue prays that the Tribunal be directed 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 Tribunal was right in law in cancelling penalty levied under S. 273 [sic 271(1)(c)] when the surrender made by the assessee during the enquiry/investigation cannot be said to be voluntary and also the assessee failed to submit any explanation in response to notice under S. 274 r/w S. 273 [sic 271(1)(c)] in spite of repeated opportunities afforded to him ?"
(2.) THE dispute relates to the asst. year 1986 -87. During the course of proceedings, the assessee disclosed an Addl. income of Rs. 1 lakh. The ITO passed an order of assessment and also imposed a penalty of Rs. 4,850 under S. 273 [sic 271(1)(c)] of the Act, 1961. The assessee filed an appeal which was dismissed by the CIT(A). On further appeal to the Tribunal, the claim of the assessee that the disclosure was voluntary and that no penalty was leviable was accepted. Hence this petition. Mr. Sawhney, learned counsel for the Revenue, contends that the assessee had made the disclosure only after it had been cornered. The disclosure was not voluntary. Thus, the Tribunal has erred in reversing the order passed by the CIT(A). Is it so ?
(3.) IT is the admitted position that an enquiry was held from 25th Jan., to 8th Feb., 1988. Did the Department find any evidence against the assessee ? How was the assessee cornered ? There is no evidence. A perusal of the order passed by the Tribunal shows that the Department had not produced any thing to indicate that there was concealment of income by the assessee. Consequently, the Tribunal held that 'the penalty is not leviable'.;