R.B.Lal, J. - (1.) The following question has been referred by the Income-tax Appellate Tribunal, Allahabad, under Section 256(1) of the I.T. Act, 1961 (briefly "the Act"), for the opinion of this court. "Whether, on the facts and in the circumstances, of the case, the Tribunal was correct in cancelling the penalty order instead of setting it aside for a fresh hearing and disposal by the Inspecting Assistant Commissioner of Income-tax ?".
(2.) The material facts lie in a brief compass. The 1AC imposed a penalty of Rs. 37,412 on the assessee for the assessment year 1967-68; under the provisions of Section 271(1)(c) of the Act. The assessee appealed to the Income-tax Appellate Tribunal. In the appeal, the imposition of penalty was challenged on merits and also on the ground that no opportunity of being heard was allowed to the assessee. The Tribunal found as a fact that no opportunity of being heard was afforded to the assessee before the imposition, of the penalty and it went to the root of the matter and the penalty order could not be sustained. On the question, whether after setting aside the order of penalty, the case should be sent back to the 1AC for a fresh hearing and disposal, the Tribunal took the view that the period of limitation prescribed for passing the penalty order had already expired and the IAC was debarred from passing a fresh order of penalty. For this the Tribunal placed reliance on the decision of this court in the case of CIT v. Ram Baran Ram Nath [1976] 104 ITR 691. The Supreme Court's decision in Director of Inspection of Income-tax v. Pooran Mall & Sons [1974] 96 ITR 390, was found distinguishable by the Tribunal. At the request of the Commissioner of Income-tax, Lucknow, the Tribunal has referred the aforesaid question.
(3.) Shri M. Katju, learned counsel for the Revenue, has urged that the principle laid down by the Supreme Court in the case, Pooran Mall & Sons, was applicable to the facts of the instant case and the case should have been sent back to the IAC for fresh hearing and disposal. In view of this Supreme Court decision, the decision of this court in the case of Ram Baran Ram Nath could not be held applicable to the facts of the present case. The Tribunal was in error in distinguishing the aforesaid Supreme Court decision and in placing reliance on the decision of this court.;