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Application under section 256(2) of the Income-tax Act for direction to Tribunal to state the case and refer proposed question on cancellation of penalty under section 273(2)(aa) for assessment year 1979-80. Analysis: The judgment pertains to an application filed by the Commissioner of Income-tax seeking a direction under section 256(2) of the Income-tax Act to refer a proposed question regarding the cancellation of a penalty under section 273(2)(aa) for the assessment year 1979-80. The Assessing Officer had levied a penalty of Rs. 18,00,000, which was later cancelled by the Commissioner of Income-tax (Appeals). The Revenue then appealed to the Tribunal. The Tribunal found that the Department failed to establish that the estimate of advance tax filed by the assessee was untrue to the knowledge and belief of the assessee. The primary difference was related to a disputed claim under section 80J of the Act for earlier assessment years. The first appellate authority concluded that the adjustments made by the assessee were bona fide, including the claim for set off of business losses and deductions under section 80J. Consequently, the Tribunal dismissed the appeal. The applicant subsequently filed an application under section 256(2) of the Act. The first appellate authority's decision highlighted that there was no material to indicate that the estimate was dishonest or unfair. It emphasized the highly debatable nature of the claim for section 80J and the absence of conscious or deliberate furnishing of an untrue estimate. The Tribunal concurred with this conclusion, emphasizing that there was no element of mens rea or untrue estimate. Citing legal precedents, it was established that conclusions based on factual appreciation do not give rise to questions of law. The court found that the first appellate authority was justified in canceling the penalty, and the Tribunal correctly upheld this decision, as it was based on factual appreciation without any element of mens rea. The court ultimately concluded that the case did not involve any referable question of law since the decisions were based on an appreciation of facts. As a result, the application was dismissed as meritless, with no order as to costs. The counsel fee for each side was fixed at Rs. 750 if certified.
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