D.A. Mehta, J.

1. The Income Tax Appellate Tribunal, Ahmedabad Bench "B", has referred the following question of law for the opinion of this court under Section 256(1) of the Income Tax Act, 1961 (" the"), at the instance of the Commissioner of Income Tax, Gujarat I, Ahmedabad.

"Whether, the Appellate Tribunal is right in law and on facts in cancelling the penalty levied by the Assessing Officer under Section 271(1)(a) of the Income Tax Act observing that month in Section 271(1)(a) meant calendar month and not the lunar month of 28 or 30 days "

2. The assessment year is 1980-81. The return of income was due on July 31, 1980. The respondent-assessee company applied for extension of time and was granted time up to August 31, 1980. On August 30, 1980, further extension was requested up to September 30, 1980. However, this request was rejected by a post-card dated September 4, 1980, which was served on the assessee on September 15, 1980. The return was filed on October 30, 1980. The Inspecting Assistant Commissioner (Assessment), therefore, levied penalty of Rs. 43,213 for one month vide his order dated March 12, 1986.

3. The assessee carried the matter in appeal before the Commissioner of Income Tax (Appeals), who cancelled the penalty vide his order dated August 7, 1987, basing his decision on the judgments of the Calcutta High Court in the case of CIT v. Brijlal Lohia and Mahabir Prosad Khemka : [1980]124ITR485(Cal) and the Madras High Court in the case of CIT v. Kadri Mills (Coimbatore) Ltd : [1977]106ITR846(Mad) . According to the Commissioner of Income Tax (Appeals), though the delay exceeded thirty days, there was no delay of one complete calendar month and hence, there was no warrant for levy of penalty.

4. The Revenue carried the matter in appeal before the Tribunal and the Tribunal has upheld the order of the Commissioner of Income Tax (Appeals) after applying the ratio of the aforesaid judgments rendered by the High Courts of Calcutta and Madras.

5. Heard Mr. B. B. Naik, learned standing counsel for the applicant-Revenue. Though served, there is no appearance on behalf of the respondent-assessee.

6. For the purposes of levying penalty under Section 271(1)(a) of the Act, the relevant provisions, as were applicable for the assessment year under consideration prescribing the procedure for computing the penalty required that, in addition to the amount of tax, if any, payable by an assessee, a sum equal to 2 per cent. of the assessed tax for every month during which the default continued had to be adopted as the base. Therefore, the term "month" is required to be taken into consideration. However, the issue is no 16nger res integra. In the case of CIT v. Kadri Mills (Coimbatore) Ltd. : [1977]106ITR846(Mad) , the Madras High Court has laid down, as the said term has not been defined under the Income Tax Act, the word "month" occurring in Section 271(1)(a) of thehas to be reckoned according to the British calendar according to Section 3(35) of the General Clauses Act, 1897. There is no valid reason to take a different view of the matter and the ratio laid down by the Madras High Court and Calcutta High Court would squarely apply to the facts of the case. The view taken by the Tribunal is in consonance with the ratio of the judgments of the two High Courts, and it is not necessary to interfere with the decision of the Tribunal.

7. The question referred to the court is, therefore, answered in the affirmative, i.e., in favour of the assessee and against the Revenue. There shall be no order as to costs.