S.P. Sinha, J.The Patna Bench of the Tribunal has referred the undermentioned question u/s 256(1) of the I.T. Act, 1961 (hereinafter referred to as "the Act"):

"Whether, on the facts and in the circumstances of the case, penalty could be imposed when the return is filed u/s 139(4) of the I.T. Act, 1961 "

2. The relevant facts are that for the previous year ended on 27th October, 1962, relevant to the assessment year 1963-64, the assessee did not file his return of total income u/s 139(1) of the Act which he should have done by the 30th of June, 1963. No notice u/s 139(2) was issued to him. The assessee, however, filed return of income u/s 139(4) of the Act on 12th August, 1966. Although the ITO had not initiated any penalty proceedings u/s 271(1)(a), the AAC did so and after rejecting the assessees explanation for the default, imposed a penalty of Rs. 9,043 at 50% of the tax, calculating the period of default at 42 months. On appeal the Tribunal deleted the entire penalty on the ground that by filing a return of income u/s 139(4) of the Act, the default in compliance with the terms of Section 139(1) of the Act got wiped off.

3. These are all the relevant facts. This case is entirely covered by our judgment in the case of Addl. Commissioner of Income Tax Vs. Dongarsidas Biharilal, . Accordingly, the question of law has to be reframed as has been done in the said case and after reframing the question, for the reasons given in the said decision, which covers all the arguments that have been raised, by the contending parties in this case, the question is answered in identical terms as has been done in that case.

4. The question is reframed as under :

"Whether the filing of a return of income u/s 139(4) of the Act absolves the assessee of his default in complying with the terms of section 139(1) of the Act If not, whether the penalty levied on the assessee u/s 271(1)(a) of the Act for the said assessment years is legal and valid "

5. Our answer is that:

Filing of return of income u/s 139(4) of the Act did not absolve the assessee of his default in complying with the terms of Section 139 of the Act for the assessment year in question and consequently penalty u/s 271(1)(a) of the Act was leviable on him.

6. There will be no order as to costs.

S. Sarwar Ali, J.

7. I agree that the questions be answered as in the judgment of my learned brother. There is, however, one aspect on which my view is not identical with that of my learned brother, who is of the opinion that for the purpose of levying penalty for default in filing the return of income the period of default would be an assessment year, that is to say 12 months, as defined in Section 2(9) of the Act. In my humble view the period of default cannot be so confined. This aspect, however, need not be pursued further, as the reference, in my opinion, has to be answered in the manner as indicated by my learned brother.