Mohanty, J. - These applications under Act, are by the revenue calling upon the s. 256(2) of the IT Act, 1961 (the Tribunal, Cuttack Bench, to state a case and refer the following question for the opinion of this court :
'Whether, on the facts and in the circumstances of the case, keeping the amended provision of s. 273 w.e.f. 1-4-1970 in view, the deletion of penalty was warranted ?'
2. The relevant asst. yrs. are 1962-63, 1964-65, 1965-66, and 1969-70. The assessee submitted voluntary returns for the above years and the ITO held that the assessee had, without reasonable cause, failed to furnish the estimate of advance tax payable by her in terms of s. 212(3) of the Act. So a proceeding u/s 273(1)(b) of the Act was initiated against the assessee and ultimately penalties of Rs. 7,920, Rs. 2,076, Rs. 2,635, Rs. 21,590 for the asst. yrs. 1962-63, 1964-65, 1965-66 and 1969-70 respectively, were levied. The matter was carried in appeal to the AAC and it was contended there that since the initiation of proceedings were completed and recorded after 1-4-1970, no penalty u/s 273 could be levied. The Commissioner accepted the above contention of the assessee and waived the amounts of penalty. The matter was carried to the Tribunal by the department. The Tribunal also accepted the contention of the assessee and dismissed the appeal. An application u/s 256(1) was filed before the Tribunal, which was dismissed. So the department moved this court u/s 256(2).
3. In this case a petition u/s 271(4A) was filed on 16-3-1970 by the assessee for assessing the income that she had not disclosed earlier. After this application was filed, s. 273 was amended and the amended provision came into force w.e.f. 1-4-1970. According to the amended provision :
(2) If the Income-tax Officer, in the course of any proceedings in the connection with the regular assessment for the assessment year commencing on the 1st day of April, 1970, or any subsequent assessment year, is satisfied that any assessee -
(b) has without reasonable cause failed to furnish an estimate of the advance tax payable by him in accordance with the provisions of sub-section (3) of section 212, or
he may direct that such person shall, in addition to the amount of tax, of any, payable by him, pay by way of penalty a sum -'
4. The assessment years involved in the present cases or prior to the assessment year commencing on 1-4-1970, when the amended provision of s. 273 came into force. Therefore, the provision will have no application to the facts and circumstances of these cases.
5. After hearing argument of both sides and on the facts and in the circumstances of the case, we are of the view that the amended provision of s. 273 is not attracted to these cases. Therefore, the question referred to us for opinion is answered in the affirmative and in favour of the assessee. There shall be no order as to costs.
Misra, J. - I agree.