INCOME TAX OFFICER Vs. VANALAKSHMI RICE MILL

JUDGEMENT

(1.) This writ petition has been filed by the Income tax Officer, b. Ward, Masulipatnam, against the order of the Income-tax Appellate Tribunal passed on June 30, 1975. The writ petition arises under the following circumstances :

(2.) The first respondent in these proceedings is the assessee on the file of the Income-tax Officer, B.Ward, Masulipatnam. For the assessment year 1965-66, the assessee should have filed the return of income on or before June 30, 1965. However, he filed the retrun Income on July 20, 1966. The Income-tax Officer issued a show cause notice proposing to levy penalty under S. 271(1)(a) of the Income-tax Act, 1961, for late filing of the return. The assessees explanation was that the delay in filing the return was because of the dissensions among the partners. This explanation of the assessee was not accepted by the Income-tax Officer who levied the penalty of Rs. 6,417/- under S. 271(1)(a) of the Act. On appeal, the Appellate Assistant Commissioner confirmed the levy of penalty. On further appeal, at the instance of the assessee, the Income-tax Appellate Tribunal, on October 19,1971, cancelled the order of penalty holding that the levy of penalty was not sustainable as the return was filed under S. 139(4) of the Act before the finalisation of the assessment and in view of the decision of the Supreme Court C.I.T. vs. Kulu Valley Transport Co. The Tribunal held that the return having been filed before the order of assessment was passed there was no delay. The Tribunal did not consider other contentions raised on behalf of the assessee and did not go into the merits regarding reasonable cause for the delay. In connection with this order dated October 19, 1971, the Appellate Tribunal was moved by Additional Commissioner of Income-tax by way of an application under S. 356(1) of the Act, to refer the following question of law viz.,

(3.) By its order dated February, 18, 1972 the Appellate Tribunal rejected the reference application on the ground that the Additional Commissioner of Income-tax was not competent to file the reference application. Thereupon, Writ Petition 5229 of 1972 was filed in this Court for the issue of a writ of Certiorari quashing the said order of the Tribunal. By its order dated August 18, 1973 this Court allowed the writ petition and set aside the order of the Tribunal dated February 18, 1972. In doing so, this court followed its earlier decision in writ petition 735 of 1972, decided on August 29, 1972 reported in Additional commissioner I.T. vs. I.T. Tribunal.