COMMISSIONER OF INCOME TAX Vs. LALJIDAS AGARWALLA

JUDGEMENT

(1.) THE present reference has been made by the Tribunal under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), whereby opinion has been sought in respect of the following question of law :

(2.) THE facts are that the assessee had defaulted in filing the return for the assessment year 1970-71 by 22 months. As such, penalty proceeding was initiated under Section 271(1)(a) of the Act and a show-cause notice was issued in this regard. THE notice was duly served but the assessee did not file any reply. Though the penalty proceeding was initiated and the notice was issued by Sri P. B. Audhya, the then Income-tax-Officer, he did not take any action in this regard. Subsequently, after about two years, the successor-Income-tax Officer, namely, S. N. Mishra; without issuing any fresh show-cause notice, levied a penalty of Rs. 7,525. THE assessee having lost in appeal before the Appellate Assistant Commissioner preferred a second appeal to the Tribunal. Before the Tribunal, the assessee neither disputed the factum of default in filing the return nor did he advance any plea of reasonable cause to justify the delay in filing the return. Instead, the order of penalty was assailed on the technical ground that it was incumbent upon the successor-Income-tax Officer who had in fact imposed penalty to issue a fresh show-cause notice before passing the impugned order, THE Tribunal agreed with the contention of the assessee and cancelled the impugned order.

(3.) LET a copy of this judgment be remitted to the Tribunal.