- (1.) THIS is a petition made by the Commissioner of Income-tax, Patiala, under Section 256 (2) of the Income-tax Act, 1961 (hereinafter called "the Act"), to direct the Income-tax Appellate Tribunal, Chandigarh Bench, Chandigarh, to refer the following question of law for the opinion of this court: "whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in law in deleting the penalty levied under Section 271 (1) (a) of the Act ?"
(2.) THE facts of this case are that the respondent-firm, Messrs R. B. Jodhamal Bishan Lal Kuthiala, Hoshiarpur, is a registered firm. Notice under Section 22 (2) of the Indian Income-tax Act, 1922, was served on the assessee on November 4, 1959, to file the return of income on or before December 8, 1959. The assessee filed its return of income for the assessment year 1959-60, on August 5, 1961, and thus there was a delay of 19 months in filing the return of income. The assessment was made on a total income of Rs. 12,03,324, which was reduced to Rs. 11,72,762 as a result of the appellate orders. As the assessee had failed to file its return within time, the Income-tax Officer after giving due opportunity to the assessee imposed a penalty of Rs. 3,39,442 for the delay of 19 months in filing the return of income. The assessee preferred an appeal against this order to the Appellate Assistant Commissioner of Income-tax, who decided that up to April 30, 1961, the assessee had a reasonable cause to delay the filing of the return, but there was no reasonable cause within the meaning of Section 271 (1) (a) of the Act to condone the delay in filing the return for the months of May, June and July, 1961, and he reduced the penalty from Rs. 3,39,442 to Rs. 50,000. The assessee then appealed to the Income-tax Appellate Tribunal, Chandigarh Bench, Chandigarh, and the Tribunal, vide its order dated May 24, 1972, deleted the entire penalty holding that the same set of circumstances as were present for reasonable cause for the earlier 16 months, were continuing during the months of May, June and July, 1961, also. The Commissioner of Income-tax, Patiala, made an application under Section 256 (1) of the Income-tax Act, 1961, before the Tribunal to refer the above-mentioned question of law for the opinion of this court. The Tribunal held that its findings are based on the appraisal of the material before it as regards the reasonableness of the cause within the meaning of Section 271 (1) (a) of the Act and as such it is a finding of fact and there was no question of law and dismissed this application on November 27, 1972. Thereafter, the Commissioner of Income-tax filed the present petition under Section 256 (2) of the Act.
(3.) SECTION 271 (1) (a) (i) of the Act reads as follows : " (1) If the Income-tax Officer or the Appellate Assistant Commissioner, in the course of any proceedings under this Act, is satisfied that any person (a) has without reasonable cause failed to furnish the return of total income which he was required to furnish under Sub-section (1) of Section 139 or by notice given under Sub-section (2) of Section 139 or Section 148 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by Sub-section (1) of Section 139 or by such notice, as the case may be, or. . . . . . he may direct that such person shall pay by way of penalty,- (i) in the cases refered to in Clause (a), in addition to the amount of the tax, if any, payable by him, a sum equal to two per cent, of the tax for every month during which the default continued, but not exceeding in the aggregate fifty per cent, of the tax. ";