JUDGMENT
B. Subhashan Reddy, C.J.
1. The order of the Income-tax Appellate Tribunal confirming the order of the Commissioner of Income-tax (Appeals) is under challenge.
2. Learned standing counsel for the Income-tax Department, Mr. K. Subra-maniam, submits that there is a legal fiction introduced in Explanation 1 to section 271(1) of the Income-tax Act, 1961, that concealment, ipso facto, will attract penalty.
3. We are not able to accede to this contention for the reason that the Explanation 1 contains two sub-clauses (A) and (B) which reads as under :
“Explanation 1 to section 271(1): Where in respect of any facts material to the computation of the total income of any person under this Act,-
(A) such person fails to offer an explanation or offers an explanation which is found by the Assessing Officer or the Commissioner (Appeals) or the Commissioner, to be false, or
(B) such person offers an explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his total income have been disclosed by him,
then, the amount added or disallowed in computing the total income of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the income in respect of which particulars have been concealed.”
4. On reading the above provisions, it cannot be said that there is any legal fiction countenancing the establishment of mens rea. This is not a case of levy of tax for the differential amount of investment made on the construction of kalyana mandapam, but this is a case of levy of penalty on the said differential amount of tax. The amount of tax is always looked differently than the levy of penalty and in the case of levy of penalty, always there should be mens rea. There being no legal fiction and mens rea and the question raised being a question of fact recorded in favour of the assessee, that too concurrently by both the Commissioner of Income-tax and the Income-tax Appellate Tribunal, no question of law arises for consideration by this court, more so when there is a settled legal position interpreting the concerned provision of G the Act by a Division Bench of this court in the case of CIT v. Apsara Talkies [1985] 155 ITR 303 (Appex). The appeal is dismissed.