MIAN SHAKIRULLAH JAN, J.-The assessee, an individual, deriving income from salary being an employee in the Forest Department, instead of filing the Return on 31-8-1994 filed the same on 17-5-1995 after issuance of notice under section 56 of the Ordinance. He then was issued notice under section 116 of the Ordinance and penalty of Rs.30,000 was imposed upon him for the delay in filing of Return. On appeal before the Commissioner Income-tax (Appeals) the penalty was reduced from Rs.30,000 to Rs.2,100 by holding that the delay was not intentional and also with a reference to precedent cases. The appeal fled by the ITO Salaries Circle was dismissed by the Income-tax Appellate Tribunal and hence the present appeal on the following question of law:

"(a) Whether on the facts and in the circumstances of the case the learned Income-tax Appellate Tribunal was justified to uphold the order, of Commissioner of Income-tax (Appeals) whereas the provisions of the imposition of penalty contained in section 108 were made mandatory with effect from the Finance Act, 1994, as the word may was. substituted with word shall.

(b) Once if was established that the default in filing the Income-tax Return in time was without reasonable cause. Whether the learned Income-tax Appellate Tribunal was justified in confirming the penalty which was reduced by the CIT(A).

(e) Whether after the amendment in section 108 of the Income Tax Ordinance, 1979 through Finance Act, 1994, the discretion of the Assessing Officer has been restricted to determining as to whether the default was wilful. The Assessing Officer has no discretion in deviating from. the rate of penalty prescribed under the said section... "

2. The learned Appellate Tribunal dismissed the appeal, inter alia, that the default was not intentional and wilful as observed by the Commissioner Income-tax (Appeals) and that the fact of wilful default may be taken into consideration and the word shall instead may is not a bar for the same as per provisions of section 108 of the Ordinance that the reasonable cause may be taken into consideration or may be attended to.

3. The fore-most consideration which weighed with the two learned Appellate forums was that the delay was not wilful or intentional and which is question of fact and not law upon which the appeals before the two lower forums were decided hence there is no question of law arising out of the impugned order to attract the provisions of section 136 of the Income tax Ordinance.

The appeal is, therefore, dismissed.