( 1 ) BY this petition under Section 256 (2) of the Income-tax Act, 1961 the Revenue seeks a mandamus to the Income-tax Appellate Tribunal for drawing up the statement of case and referring the following question of law for the opinion of the High Court :

"whether, on the facts and in the circumstances of the case, the ITAT was correct in law in having failed to appreciate that assessee company had furnished inaccurate particulars of income in its return and also in deleting the penalty u/s 271 (1) (c) imposed by the Assessing Officer. "

( 2 ) THE Assessment Year in question is 1986-87. The assessee filed a return declaring an income of Rs. 15,700. 00 During the course of survey it was found that the assessee had additional income. On 9. 12. 87 the assessee filed a revised return surrendering an income of Rs. 5,50,000. 00 over and above what was declared earlier. On 29. 12. 97 the assessee made yet another communication to the Assessing Officer stating it to be in continuation of his earlier revised voluntary return of income surrendering yet another amount of Rs. 8,99,000. 00 as income. There was another figure of Rs. 1,000. 00 which was not explained by the assessee and therefore added as income. Thus, in all there was an addition made to the income of the assessee by the figure of Rs. 24,50,000. 00 over and above the income already returned.

( 3 ) THE assessment was finalised on 17. 2. 1981. By the Assessment Order the Assessing Officer also directed penalty proceedings under Section 271 (1) (c), amongst others, to be initiated against the assessee separately.

( 4 ) AFTER affording the assessee an opportunity of hearing, by order dated 22. 3. 90 the Assessing Authority imposed a penalty of Rs. 9,77,100. 00 on the assessee forming an opinion that the assessee had deliberately concealed its income by filing inaccurate particulars of income to the tune of Rs. 15,51,000. 00 The penalty was confirmed in appeal by CIT (A) but has been set aside by the Income-tax Appellate Tribunal.

( 5 ) THE Revenue sought for the question REFERRED TO to hereinabove being REFERRED TO to the High Court by moving a petition under Section 256 (1) of the Income-tax Act which has been rejected by the Tribunal.

( 6 ) IT was submitted by the learned Senior Standing Counsel for the Revenue that on the facts available on record and briefly set out hereinabove, a clear case of concealment of income was made out and, therefore, the Tribunal was not justified in deleting the penalty. The learned counsel also submitted that all such relevant facts though available on record were not kept in view by the Tribunal and, therefore, the findings arrived at by it are perverse and not binding on this court and hence a referable question of law does arise from the order of the Tribunal. Reliance has been placed on Mahavir Metal Works V. Commissioner of Income Tax, Punjab; 1973 (92) ITR 513 a Division Bench judgment of the Punjab and Haryana High Court.

( 7 ) THE learned Senior Counsel for the assessee has submitted that the satisfaction as to the assessee having concealed the particulars of his income or furnished inaccurate particulars of such income is to be arrived at by the Assessing Officer during the course of any proceedings under the Act, which would mean the assessment proceedings, without which, the very jurisdiction to initiate the penalty proceedings is not conferred on the Assessing Authority by reference to clause (c) of sub-section (1) of Section 271 of the Act. Reliance has been placed on the Supreme Court decision in D. M. Manasvi Vs. Commissioner of Income Tax, Gujarat II. 1972 (86) ITR 557 wherein their Lordships have reiterated the view of the law taken in Commissiner of Income-Tax, Madras and Another Vs. S. V. Angidi Chettiar; 1962 (44) ITR 739, 745 stated in the following terms :

" The power to impose penalty under section 28 depends upon the satisfaction of the Income-tax Officer in the course of proceedings under the Act; it canno