Rastogi, J. - (1.) The Income-tax Appellate Tribunal, Delhi Bench 'E', New Delhi, has referred the following question for the opinion of this court: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the decision in Calcutta Chromotype Pvt. Ltd. v. ITO, [1971] 80 ITR 627 (Cal) applicable to the case of the assessee and in confirming the cancellation of penalty ordered by the Appellate Assistant Commissioner ?"
(2.) The brief facts are these, M/s. Anchor Pressing (P.) Ltd., Aligarh (hereinafter referred to as "the assessee"), should have filed its return for the assessment year 1968-69 under Section 5(1) of the C. (P.) S. T. Act, 1964 (hereinafter "the Act"), on or before 30th September, 1968. The return was, however, filed on September 26, 1972, but before the assessment was made. The ITO initiated penalty proceedings for the delay in the filing of the return and issued a show-cause notice under Section 10 of the Act. Pursuant to the notice the assessee filed an objection in which mainly it was contended that there had been no failure on the part of the assessee to furnish a return under Section 5 of the Act, and that the delay in the submission of the return was not deliberate and wilful and hence Section 9 of the Act was not applicable. The ITO did not accept the assessee's explanation as satisfactory and imposed penalty in the sum of Rs. 5,500.
(3.) Aggrieved, the assessee filed an appeal before the AAC and it was contended that since there was no failure on the part of the assessee to furnish the return under Section 5 of the Act, penalty was not exigible under Section 9(a) and reliance was placed on a decision of the Calcutta High Court in Calcutta Chromotype Pvt. Ltd. v. ITQ, [1971] 80 ITR 627 (Cal). This contention found favour with the AAC and he held that the penalty could not be levied under Section 9(a) of the Act because even though the return was filed after a delay, since it was filed before the making of the assessment, no default was committed.;