BIMAL CHANDRA BASAK, J.

( 1 ) THIS reference under Section 256 (2) of the I. T. Act, 1961 (hereinafter referred to as "the Act"), is at the instance of the revenue. The question referred to is as follows:"whether, on the facts and in the circumstances of the case, and on a proper interpretation of the order of penalty passed by the Inspecting Assistant Commissioner, the Tribunal was right in holding that the factual foundation for the levy of penalty was not established and that the levy of penalty was, therefore, wrong?"

( 2 ) THE facts admitted and/or found by the Tribunal are as follows. The assessment year under consideration is 1959-60. The relevant previous year ended on the March 31, 1959. The assessee is a partnership firm carrying on business in jute and cloth, with its head office at No. 4, Dayehatta Street, and branches in Dhubri and Agartalla. In its books at the head office the assessee had shown receipt of commission for sale of jute on account of Tilokchand Jain of Alipurduar and Santokchand Jain of Aluabati. At the assessment the assessee could not produce the statement of accounts showing the details of the said sales, the commission and expenses therefor and the

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