C.M. Lodha, C.J.
1. These are three connected matters which can be conveniently disposed of by a common order. Case No. 64 of 1973 pertains to the assessment year 1963-64, in respect of penal interest for late filing of the return. Case No. 170 of 1973 also pertains to the assessment year 1963-64, but relates to penalty for late filing of the return. Case No. 168 of 1973 pertains to the assessment year 1962-63, in respect of late filing of the return. The assessee's case for these years was that he filed the returns on May 4, 1963, whereas the department's case was that the returns had been filed on October 7, 1966. The ITO in all the cases came to the conclusion that the assessee's contention was incorrect, and, in this view of the matter, he calculated penal interest as well as penalty on the basis that the returns were filed on October 7, 1966.
2. Aggrieved by the orders of the ITO the assessee filed an appeal before the AAC. In Case No. 170 of 1973, the AAC dismissed the assessee's appeal. In Case No. 64 of 1973, the appeal was partly allowed, and it was held that the return had been filed on May 4, 1963, as alleged by the assessee. In Case No. 168 of 1973, the AAC dismissed the appeal. On further appeal, before the Appellate Tribunal, in Case No. 64 of 1973, the Appellate Tribunal, however, took a different view and accepted the assessee's contention and came to the conclusion that the returns had been filed on May 4, 1963, and only a duplicate copy of the return was filed on October 7, 1966. On the basis of the order by the Delhi Bench, in Cases Nos. 168/73 and 170/73, the Appellate Tribunal, Jaipur, also came to the conclusion that the assessee had filed the returns for the relevant years on May 4, 1963.
3. Dissatisfied by the decision of the Tribunal in all the three cases, the department filed applications for stating the case to this court and referring the following questions of law I Case No. 64/73 :
'(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in admitting additional piece of evidence produced by the assessee in the shape of certificate of posting before it in view of rule 29 of the Income-tax Appellate Tribunal Rules, 1953
(2) Whether there is any evidence on record to justify the finding of the Tribunal to the effect that the return of income of the assessee for assessment year 1963-64 was filed on May 4, 1963 '
Case No. 168/73 :
' Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the return of income for the assessment year 1962-63 was filed on May 4, 1963, and consequently in reducing the amount of penalty levied under Section 271(1)(a) of the Income-tax Act, 1961 Case No, 170/73 :
' Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the return of income was filed on May 4, 1963, and consequently in cancelling the penalty levied under Section 271(1)(a) of the Income-tax Act, 1961 '
3. The applications filed by the department were dismissed on the ground that no question of law arose out of the orders of the Tribunal. Consequently, the department has filed applications to this court under Section 256(2) of the I.T. Act, 1961, for directing the Income-tax Appellate Tribunal to state the case and refer the questions of law arising out of its orders.
4. Mr. S.M. Mehta, learned counsel for the Commissioner of Income-tax, has strenuously urged that the finding arrived at in the three orders of the Tribunal that the assessee had filed the return on May 4, 1963, is perverse and is based on no evidence. It is argued that it is not rationally possible to come to such a finding. He has also urged that on May 4, 1963, the assessee's authorised representative had asked for time to file the return and, therefore, no inference can be drawn that the return was filed on that very day. It is further urged that the Tribunal was not justified in allowing additional evidence in Case No. 64 of 1973.
5. After having heard the learned counsel for the parties, we have come to the conclusion that the inference drawn by the Tribunal is one of fact. Whether the return was filed on May 4, 1963, or on October 7, 1966, is undoubtedly a question of fact. The only point is, whether there was evidence for coming to this conclusion. The assessee's case was that the returns for 1961-62, 1962-63 and 1963-64 were filed together on May 4, 1963. Of course, there is no dispute that the return for 1961-62 was filed on May 4, 1963. In order of fortify his submission, the assessee produced before the Tribunal additional evidence in the shape of certificate of posting along with a copy of the letter sent by the assessee under that certificate wherein it was mentioned that the returns for all the three years had been filed on May 4, 1963. As against this evidence, there is the fact that the authorised representative of the assessee asked for time on May 4, 1963, for filing the return for the years 1962-63 and 1963-64, and from this fact, which, according to Mr. Mehta, is conclusive, it must be inferred that the returns for these two years had not been filed on May 4, 1963. All that we can say is that it was possible for the Tribunal to have come to the conclusion to which Mr. Mehta has persuaded us to arrive at. It is all a question of inference and if the Tribunal thought it fit to accept the contention advanced by the assessee and refused to draw an adverse inference against him on the basis of the representation made by his authorised representative, we cannot say that the finding is based on no evidence or is perverse or is rationally not possible. In our opinion, it is not a fit case in which we should call for a statement from the Tribunal.
6. These applications are, therefore, dismissed. Let a copy of this order be placed on the file of each of the above three cases. No order as to costs.