N.D.OJHA, J. - (1.)ON an application made by the assessee under S. 256(2) of the INCOME TAX ACT, 1961 (hereinafter referred to as 'the Act'), this Court directed the Tribunal to draw up a statement of the case and refer the following question to this Court for its opinion:
"Was the Tribunal right in law in refusing to entertain the following ground which was raised by the assessee at the stage of argument - 'that the inordinate delay in passing the order under S. 28(1)(c) be held good ground for not levying the penalty' ?"

(2.)THE facts in a nutshell which are necessary for answering this question are that the order for the asst. year 1956 -57 was made on 18th March, 1961 and the order imposing penalty was passed on 31st July, 1974 under S. 28(1)(c) of the 1922 Act. The order of imposing penalty under S. 28(1)(c) was maintained in appeal by the AAC and also by the Tribunal in second appeal.
Before the Tribunal, during the course of arguments, a prayer was made for permitting a question to be raised as to whether it was expedient to impose penalty after about 13 years of the passing of the order of assessment. The Tribunal did not grant permission to raise this question for the first time during the course of arguments. The Tribunal held that the assessee could not be allowed to raise the additional ground of appeal because the reasonableness of delay in finalising the penalty proceedings is a question of fact and not a question of law and that even though a question of law could be raised at any stage, provided the proceedings were pending either before the assessing authority or before the appellate authorities, this privilege could not be availed of as of right in regard to the question of fact.

(3.)THEREAFTER , the assessee made an application under S. 256(1) of the Act requiring the Tribunal to refer certain questions to this Court for its opinion. The said application having been dismissed, the assessee made the application under S. 256(2) of the Act on which the order requiring the Tribunal to draw up a statement of case and refer the aforesaid question, was passed by this Court.