Somnath Iyer, J.
1. For the assessment year 1957-58, the assessee filed a return of income on October 12, 1957, showing an Income of Rs. 14,143. On November 21, 1957, he declared, through a revised return, an additional income of Rs. 61,244. Thereafter, on February 25, 1959, the Income-tax Officer initiated proceedings under sections 28(1)(c) and 28(3), for the imposition of a penalty for concealment. During the pendency of those proceedings, the assessee produced a statement on March 20, 1959.
2. Thereafter, the Income-tax Officer, who issued the notice under section 28, stood transferred and his successor made an order on December 15, 1961, imposing a penalty of Rs. 30,000. Before he did so, he did not again hear the assessee.
3. In the appeal presented to the Appellate Assistant Commissioner, the assessee was able to get rid of the order made by the Income-tax Officer on the ground that the Income-tax Officer who succeeded to the Income-tax Officer who had issued the notice did not again hear the assessee. But in the appeal preferred by the Income-tax Officer to the Appellate Tribunal, the view taken by the Appellate Assistant Commissioner did not commend itself, with the result that the Appellate Tribunal set aside the order of the Appellate Assistant Commissioner and remitted the appeal to him for disposal on merits which has not, so far, been done.
4. In this reference under section 66(1) of the Income-tax Act, 1922, we are asked to express our opinion on the question whether the successor Income-tax Officer did not have the competence to impose the penalty without affording to the assessee a fresh opportunity to make a representation against such imposition. The question referred to us reads :
'Whether, on the facts and in the circumstances of the case, and on a proper construction of sections 5(7C) and 28, the successor Income-tax Officer was competent to levy penalty without giving the assessee a fresh opportunity of being heard ?'
5. In Shop Siddegowda & Family v. Commissioner of Income-tax, this court expressed the view that where one Income-tax Officer issues a notice under section 28(3), and the assessee submits his Explanation in writing, but does not choose to appear or does not ask for an opportunity to adduce evidence or address arguments, the successor Income-tax Officer has the competence to impose a penalty after scrutiny and consideration of the written representation, without making available to the assessee a fresh opportunity of being heard, unless the assessee himself asks for such opportunity under the first proviso to section 5(7C).
6. According to the statement of the case submitted to us by the Tribunal, the assessee produced a statement in writing before the Income-tax Officer who stood transferred, and there was no oral representation made by the assessee. That is how we should understand what the Tribunal has stated in the course of its order in which it pointed out that the Tribunal was unable to find from the record anything to support the theory that there was some oral representation in addition to what was stated in writing.
7. Mr. Chouta for the assessee asked us to say that the assessee did make an oral representation before the transferred Income-tax Officer and in support of this submission he asked attention to a communication addressed by the assessee to that Income-tax Officer on March 20, 1959. The difficulty which Mr. Chouta encounters in making this submission is two-fold. The first is that the Tribunal has recorded an unmistakable finding that no oral representation was made and that no oral argument was addressed before the transferred Income-tax Officer. The second is that the communication on which Mr. Chouta depends does not support the submission that there was any such oral representation or argument. That communication makes it clear that the assessee and his representative spoke to the transferred Income-tax Officer at one stage but that stage was antecedent to the commencement of the penalty proceedings. It is clear, therefore, that the occasion on which the assessee and his representative met the Income-tax Officer and tendered some oral explanation was the occasion antecedent to the production of the revised return. That being so, it is clear, and that is how we understand the Tribunal to have viewed the matter, that the Appellate Assistant Commissioner did not properly comprehend the letter addressed by the assessee to the transferred Assistant Income-tax Officer on March 20, 1959.
8. The position, therefore, is that after the commencement of the penalty proceedings, the assessee produced a written representation opposing the imposition of penalty before the transferred Income-tax Officer. There was thereafter no oral argument or representation addressed or made to him before he was transferred in May, 1960. So, when the Income-tax Officer who imposed the penalty took up the matter, he had before him the written representation and no request was made to him by the assessee that the proceedings should be reopened or that he should be reheard. That being so, there was complete compliance with section 28(3) and section 5(7C) of the Act, and there was no obligation on the part of the successor Income-tax Officer to afford another and a fresh opportunity to the assessee to make any further representation. That that is the proper conclusion is clear from the decision of this court in Shop Siddegowda and Family v. Commissioner of Income-tax.
9. Our answer to the question referred to us, therefore, is against the assessee and our answer is that the successor Income-tax Officer was competent to levy the penalty without giving a fresh opportunity to the assessee of being heard.
10. We, however, make no direction in regard to costs.