BHAGWATI, J. - (1.)THE question of law which arises for consideration in this reference is not an easy one and it has caused some anxiety to us in reaching a conclusion. There was at all material times a Hindu undivided family consisting of one Madhusudan and his sons (hereinafter referred to as 'the assessee'). The assessee had not been assessed for any assessment year prior to 1956 -57, but for the assessment year 1956 -57, a notice under section 22(2) of the Indian Income -tax Act, 1922 (hereinafter referred to as 'the old Act'), was served on the assessee on 21st May, 1956, and it was pending and no assessment had been completed under it up to 15th March, 1957, which was the last date for filing an estimate of advance tax for the assessment year 1957 -58, under section 18A(3) of the old Act. The assessee did not file an estimate of advance tax for the assessment year 1957 -58, before 15th March, 1957, though its total income for the account year relevant to that assessment year was clearly likely to exceed the maximum amount not chargeable to tax in its case by two thousand five hundred rupees. The Income -tax Officer, therefore, while making an order dated 15th March, 1958, assessing the assessee to income tax for the assessment year 1957 -58, issued a notice of the same date calling upon the assessee to show cause why penalty should not be imposed on it under section 28(1)(a) read with section 18A(9) for having failed without reasonable cause to comply with the provisions of section 18A(3). The assessee submitted its reply dated 5th September, 1959, showing cause against the penalty proposed to be imposed by the Income -tax Officer but for some inexplicable reasons, there was no progress for about six years and it was only on 20th November, 1965, that an order was made by the Income -tax Officer imposing penalty on the assessee. However, in the meantime, Madhusudan died on 29th January, 1962, and after the death of Madhusudan, a total partition of the properties of the Hindu undivided family by metes and bounds was effected on 12th February, 1962. The coparceners of the erstwhile Hindu undivided family made a claim at the time of assessment for the assessment year 1963 -64, that a total partition had taken place amongst members of the Hindu undivided family and the Income -tax Officer, after making an order passed an order dated 21st June, 1966, under section 171(3) of the Income -tax Act, 1961 (hereinafter referred to as 'the new Act'), which had come into force from 1st April, 1962, recording a finding that there was a total partition of the joint family properties with effect from 12th February, 1962. The assessee had in the meanwhile preferred an appeal against the order of penalty to the Appellate Assistant Commissioner and in view of the order dated 21st June, 1966, recognising the partition with effect from 12th February, 1962, the assessee raised a contention at the hearing of the appeal that the Hindu undivided family did not subsist at the date when the order of penalty was made and it was not competent to the Income -tax Officer to make the order of penalty against a non -existent entity. The assessee also contended in the alternative that in any event the Hindu undivided family was assessed for the assessment year 1956 -57, when the notice under section 22(2) was served on the assessee on 21st May, 1956, and, therefore, it could not be said on 15th March, 1957, that the assessee 'has not hitherto been assessed so as to attract the applicability of section 18A(3) and, in the circumstances, there was no default on the part of the assessee in complying with the provisions of section 18A(3). The Appellate Assistant Commissioner was impressed by both these contentions and he allowed the appeal and cancelled the order of penalty. The revenue, being aggrieved by the order of the Appellate Assistant Commissioner, preferred an appeal to the Tribunal. The Tribunal disagreed with the view taken by the Appellate Assistant Commissioner in regard to the second contention and held that 'though the notice under section 22(2) was served on 21st May, 1956, no assessment under section 23 was made on the assessee prior to 31st March, 1957, nor was even provisional assessment under section 23B made on the assessee prior to 15th March, 1957' and the assessee was accordingly not 'hitherto..assessed' within the meaning of section 18A(3). However, so far as the first contention was concerned, the Tribunal found itself in agreement with the view taken by the Appellate Assistant Commissioner and held that since the Income -tax Officer had by his order dated 21st June, 1966, recognised the partition of the Hindu undivided family with effect from 12th February, 1962, there was no Hindu undivided family in existence at the date when the order of penalty was made and the order of penalty having been made on a non -existent entity was invalid. The Tribunal accordingly upheld the decision of the Appellate Assistant Commissioner. The revenue, thereupon, applied for a reference and on the application the Tribunal referred the following question of law for the opinion of this court :
'Whether, on the facts and in the circumstances of the case, it was competent for the Income -tax Officer to impose penalty on the assessee under section 18A(9)(b) of the Indian Income -tax Act, 1922 ?'

(2.)THE question as framed is wide enough to take in both aspects of the controversy between the parties and we shall now proceed to consider the arguments which have been advanced before us in regard to both these aspects.
We may first dispose of the contention of the assessee relating to the second aspect of the controversy since it lies in a very in a very narrow compass and there is nothing much while can be said by the assessee in regard to it. It is necessary in order to appreciate this contention to refer to section 18A(3) of the Act. That section, omitting portions immaterial, reads as follows :

'Any person who has not hitherto been assessed shall, before the 15th day of March in each financial years, if his total income of the period which would be the previous year for an assessment for the financial year next following is likely to exceed the maximum amount not chargeable to tax in his case by two thousand five hundred rupees, send to the Income -tax Officer an estimate of the tax payable by him on that part of his income which is not chargeable under the head 'Salaries' of the said previous year calculated in the manner laid down in sub -section (1).....'

(3.)IT is clear on a plain reading of the language of section 18A(3) that the obligation to send an estimate of the advance tax to the Income -tax Officer before the 15th day of March in each financial year is laid on a person 'who has not hitherto been assessed'. The last date for filing an estimate of advance tax is 15th day of March of the financial year and the liability to do so attaches only to a person who has not been assessed at any time up to that date. The assessee would, therefore, be liable to file an estimate of advance tax before the 15th day of March, 1957, only if it can be said that it was not assessed 'hitherto', that is, at any time before that date. Now it is evident from the facts that no assessment was made on the assessee at any time prior to 15th March, 1957. The only step which was taken against the assessee towards making an assessment was the issue of a notice under section 22(2) for the assessment year 1956 -57. This notice was undoubtedly served on the assessee before 15th March, 1957, but mere issue of notice for assessment cannot be said to be tantamount to assessment. What section 18A(3) requires is that the assessee should have been assessed and it could not be said to have been assessed unless provisional assessment was made on him under section 23B or regular assessment made under section 23. The assessee in the present case was, therefore, person who had not been assessed before 15th March, 1957, and it fell within the description 'who has not hitherto been assessed' so as to attract the applicability of section 18A(3). The assessee was accordingly liable to file an estimate of advance tax before 15th March, 1957, and since it admittedly did not do so, and, on the finding reached by the Tribunal, there was no reasonable cause which prevented it, the assessee must be held to have failed without reasonable cause to comply with the provisions of section 18A(3) and rendered itself liable to penalty under section 28(1)(a) read with section 18A(9)(b).
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