COMMISSIONER OF INCOME TAX Vs. ANWARKHAN MEHBOOB COMPANY

JUDGEMENT

(1.) THIS is an application by the Revenue under section 256(2) of the Income -tax Act, 1961, for a direction to the Income -tax Appellate Tribunal to state the case and refer the question of law which arises in the case.

(2.) THE assessee, Anwarkhan Mehboob Co., Jabalpur, filed its return late for the assessment years 1969 -70 and 1970 -71. The Income -tax Officer issued notices on April 30, 1976, under section 271(1)(a) read with section 274 of the Income -tax Act, 1961, to the assessee to show cause why penalty should not be imposed on it. The notices were served on the assessee on May 1, 1976, and the explanation was filed on May 6, 1976. The Income -tax Officer who issued the notices was then transferred and it was his successor who passed the final order on March 8, 1977, for both these years, imposing penalties amounting to Rs. 48,705.50 and Rs. 57,270, respectively, for these two assessment years. The assessee preferred appeals before the Commissioner of Income -tax (Appeals) which were dismissed for both the years. The assessee then preferred second appeals to the Tribunal, which were disposed of by a common order dated March 18, 1980 'annexure -E' of the Tribunal. Separate orders were passed by the two Members of the Tribunal.

(3.) THE result of the separate orders of the two Members of the Tribunal therefore, is that according to one of them, the imposition of penalty is quashed and no further proceeding is to take place while the other order directs the Income -tax Officer to pass a fresh order in accordance with law after giving proper opportunity of hearing to the assessee. To this extent there is a difference between the two orders and no attempt to reconcile the same has been made by the Tribunal for the assessment year 1970 -71 which has given rise to this reference. Shri Rawat, learned counsel for the Revenue, states that for the assessment year 1969 -70, which is governed by the same order, a reference has been made to a third Member of the Tribunal for resolving this conflict, but the same has not been done in respect of the assessment year 1970 -71, with which we are concerned.