B. S. Dhillon, J. - The assessee is an individual. The asst. yr. concerned commenced on 1st April, 1968. Financial year is indicated by the ITO being the previous year, but regarding the share income of the assessee from the partnership firm, the previous year is the year ended 7th September, 1967. The ITO completed the assessment on 14th October, 1968. The assessee was a partner in the firm M/s. Behari Lal Pyare Lal with 1/2 share in the firms profits. One of the additions made by the ITO to be declared income was of an amount of Rs. 2,249/-, which had been credited to the assessees account in the said firms books as being 50% of Rs. 4,498/-, which was refunded to the said firm by the Sales Tax Department as having been paid in excess to the Sales Tax Department earlier. The Sales Tax, which was paid, had been deducted from the Income Tax assessments for the asst. yrs. 1961-62 and 1962-63. The refund amount of Rs. 4,498/- was treated as the deemed profits of the said firm u/s 41(1) of the IT Act, (hereinafter referred to as the Act) and had been included in he assessed income of the said firm for the asst. yr. 1968-69.
Penalty proceedings were initiated against the assessee on the ground that he had concealed income to the extent of Rs. 2,249/- being his 50% share of the aforesaid refund amount of Rs. 4,498/- and the impugned penalty was imposed. On appeal, the penalty was deleted by the Tribunal on 30th January, 1971, holding that the deemed income cannot be made the basis for levying penalty. This order of the Tribunal was set aside by this Court and on remand the Tribunal relying on a decision reported in CIT v. Mahavir Cold Storage, held that the identity of assessable entries, which were assessed for the asst. yr. 1961-62 and 1962-63 on the one hand and for asst. yr. 1968-69 on the other, was not the same and, therefore, the penalty could not be levied.
The Revenues application for referring the question of law 'whether on the facts and in the circumstances of the case, the Appl. Tribunal was right in law in deleting the penalty of Rs. 2,250/- imposed upon the assessee by the IAC of IT u/s 271(1)(iii) of the IT Act, 1961' was dismissed by the Tribunal. The revenue has now come up before us in a petition u/s 256(2) of the Act with a prayer that the question referred to above, being a question of law, the Tribunal be directed to refer the same to this Court for its opinion.
After hearing the ld. counsel for the parties, we are of the opinion that the view of the Tribunal that the question whether the penalty is leviable in view of the change in the identity of the arties of the firm, is not a question of law, is not sustainable. The Tribunal held that the penalty was not leviable as the identity of the assessable entities, which were assessed for the asst. yr. 1961-62 and 1962-63 on the one hand and for the asst. yr. 1968-69 on the other, was not the same. It is a different matter as to what may be the answer to the question but it cannot be successfully contended, keeping in view the facts of this case, that the question which is being sought to be referred to this Court at the instance of the Revenue, is not a question of law.
For the reasons recorded above, we allow this petition and direct the Tribunal to refer the said question of law for the opinion of this Court. The statement of the case may be sent within three months from today. There will be no order as to costs.