Govindan Nair, C.J.
1. The Income-tax Appellate Tribunal, Cochin Bench, has referred the following three questions for our decision :
'(i) Whether, on the facts and in the circumstances of the case, the order of penalty passed by the Income-tax Officer dated March 19, 1969, in pursuance of the directions contained in the order of the Income-tax Appellate Tribunal in I. T. A. No. 9202 of 1966-67, dated December 7, 1968, is time-barred
(ii) Whether, on the facts and in the circumstances of the case, the assessee is estopped from contending that the order of penalty passed by the Income-tax Officer in pursuance of the directions contained in the order of the Income-tax Appellate Tribunal in I. T. A. No. 9202 of 1966-67, dated December 7, 1968, is illegal and void by not challenging the said decision of the Tribunal by applying for a reference therefrom under Section 256(1) of the Income-tax Act, 1961 ?
(iii) Whether, on the facts and in the circumstances of the case, the acceptance of the assessee's contention by the Income-tax Appellate Tribunal and the grant of relief on that basis would not amount to a review of its earlier order in I. T. A. No. 9202 of 1966-67, dated December 7, 1968, and whether the Appellate Tribunal is competent to review its previous order ?'
2. For the year of assessment 1963-64, an order of assessment was passed imposing income-tax on one K. S. G. Panicker, Kerala Produce Exporting Co., Quilon, on July 3, 1965. Proceedings had been commenced against the assessee for belated filing of return and those proceedings culminated in an order of penalty on January 15, 1966. The assessment order was not appealed against; but the order imposing penalty was. The Appellate Assistant Commissioner dismissed the appeal from the order imposing the penalty. There was a further appeal before the Tribunal and the Tribunal by its order dated December 7, 1968, annexure 'D' to the paper book, set aside the penalty order and directed the Income-tax Officer 'to dispose of the penalty proceedings after giving the assessee an opportunity to represent his case'. The Income-tax Officer thereafter imposed an order of penalty on March 19, 1969. This was also the subject-matter of appeals before the Appellate Assistant Commissioner and the Tribunal. The Tribunal took the view that the order imposing penalty dated March 19, 1969, cannot stand in view of: Section 275 of the Income-tax Act, 1961, as it stood at the relevant time. That section is in these terms :
'275. Bar of limitation for imposing penalty.--No order imposing a penalty under this Chapter shall be passed after the expiration of two years from the date of the completion of the proceedings in the course of which the proceedings for the imposition of penalty have been commenced.'
3. A reading of Section 275 alone leaves no doubt that an order of penalty must be passed within two years of the completion of the assessment proceedings. In the case in hand, therefore, the orders should have been passed before July 3, 1967, the assessment having been completed on July 3, 1965. The section speaks in terms imperative and the language permits of no relaxation of the rigidity of the rule of limitation embodied in the section. The matter appears to be simple enough but counsel for the revenue has brought to our notice a decision of the Bombay High Court in Commissioner of Income-tax v. Kishoresinh Kalyansinh Solanki,  39 I.T.R. 522 (Bom.) wherein a provision similar to that contained in Section 275 was interpreted. That provision is in Section 33B(2)(b) of the Indian Income-tax Act, 1922, which was in these terms :
'33B. Power of Commissioner to revise Income-tax Officer's orders.--...
(2) No order shall be made under Sub-section (1)--. . (b) after the expiry of two years from the date of the order sought to be revised.'
4. The Bombay High Court took the view that the period of two years mentioned in Section 33B(2)(b) will not apply when the Commissioner acted pursuant to the direction of the Tribunal. However desirable it be to have a provision that the period of limitation would not apply when the authority acted under the direction of the appellate authority, with great respect, we are unable to agree with the view that such a provision can be introduced by judicial decisions. As a matter of fact, the legislature itself has provided safeguards in such circumstances as is evident from the provisions in Sections 153(3) and 263(3) of the Income-tax Act, 1961. The presence of such safeguards in these two sections and the absence of any in Section 275 can give rise only to one conclusion that Section 275 should be applied in its undiluted form, disregarding the consequences. We are, therefore, constrained to come to the conclusion that the order dated March 19, 1969, passed by the Income-tax Officer imposing penalty on the assessee is without jurisdiction as it is against the statutory provision contained in Section 275 of the Income-tax Act, 1961. Having come to this conclusion, we will now turn to the three questions. The first question answers itself in the light of what we have said. The order dated March 19, 1969, is beyond the period provided by Section 275 and should not have been passed. This is our answer to that question. In regard to the second question, we think it is the department that should have challenged the decision of the Tribunal and not the assessee. The Tribunal should have noticed the limitations of the Income-tax Officer in view of Section 275 and, if it committed a mistake, the mistake should have been dealt with by appropriate proceedings before the High Court in reference at the instance of the Commissioner of Income-tax. Perhaps this is a case which should have been dealt with by the Tribunal in the appeal itself, and it would have done so, had it noticed the limitations introduced on the power of the Income-tax Officer, by Section 275. The assesse is not estopped from contending that the order of penalty passed by the Income-tax Officer pursuant to the order of the Tribunal dated December 7, 1968, was illegal and void.
5. The present order of the Tribunal is not a review of the order dated December 7, 1968. This is a separate order arising out of a different matter though the effect of the present order would be to make the earlier order of the Tribunal dated December 1, 1968, innocuous. That is our answer to question No. 3.
6. We direct the parties to bear their respective costs.
7. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.