Chinnappa Reddy, J.
1. The assessee filed a return after a delay of four years and three months. The delay stood unexplained. Proceedings for levy of penalty were instituted. The income of the assessee was first assessed at Rs. 58,920 and tax of Rs. 23,265 was levied. The income was later revised to Rs. 1,44,353 and the tax determined was Rs. 91,924. There was a further revision and the income was finally assessed at Rs. 90,564 and the tax computed at Rs. 43,533. The assessee, in the meanwhile, had paid the tax of Rs. 91,924. He, therefore, became entitled to a refund of Rs. 58,341. In the penaly proceedings, it was argued that as no tax was payable by him, no penalty could be levied. This argument was accepted by the Income-tax Appellate Tribunal and the penalty levied by the Income-tax Officer was deleted. At the instance of the Commissioner of Income-tax, the following question has been referred to us for our decision :
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the penalty imposed under Section 271(1)(a) of the Income-tax Act, 1961 ?'
2. We are relieved of much of the difficulty in answering the question as a result of the amendment of Section 271(1)(a)(i) in which the expression now used is 'assessed tax' and not 'tax payable'. This amendment has been made retrospective and the amending Act further provides that it shall be deemed to have always been substituted. In view of this amendment, it is clear that the only answer that we can return to the question has to be in the negative. Shri Gupta argued that in the exercise' of our advisory jurisdiction, we should not take notice of subsequent amendments but answer the question in the light of the law as it stood at the time of the order of the Tribunal. We cannot agree with this submission. We have to take notice of the amending Act which has expressly given retrospective operation to the amendment and has further provided that the substituted provision shall be deemed to have always been in force. This view also receive support from the decision of the Supreme Court in Commercial Tax Officer v. Sri Venkateswara Oil Mills  32 STC 660. The question referred to us is, therefore, answered in the negative. No costs.