R.N. Misra, J.
1. By order dated November 20, 1973, this court directed the Appellate Tribunal to state a case and refer the following question for adjudication:
'Whether, in the facts and circumstances of the case, the Tribunal was justified in cancelling the impugned penalty imposed under Section 271(1)(a) of the Income-tax Act, 1961 ?'
2. The year of assessment is 1966-67. While the return was due by September 30,1966, it was actually filed on December 14, 1967. A proceeding was initiated for delayed filing of the return under Section 271(1)(a) of the Income-tax Act, 1961. The assessee took the stand that he had no other income than the share income from a registered firm and as the firm had not been able to work out its profit and loss the return could not be filed earlier. It is stated that the returns of the firm as also of the assessee were filed on the same day. The Income-tax Officer rejected the explanation and imposed penalty. The penalty was sustained by the Appellate Assistant Commissioner but was vacated by the Appellate Tribunal. The Tribunal categorically found :
''...............the assessee's only income was the share of profit fromthe firm in which he was a partner and when the firm could not finalise its accounts and determine its profits, it was certainly not possible for the partner to ascertain his correct income in respect of the share from the firm and to file the return............'
3. These, in our view, provide sufficient cause for the assessee for not filing the return within time and no penalty should have been imposed. The legal position has been stated, in our view, in an appropriate way in the case of Venkateswara Power Rolling Mills v. Commissioner of Income-tax. On the facts of the case we hold that the Tribunal was justified in cancelling the penalty imposed under Section 271(1)(a) of the Income-tax Act, 1961.
4. We make no order as to costs.
N.K. Das, J.
5. I agree.