B.P. Beri, C.J.
1. The Income Tax Appellate Tribunal, Bench 'B' by its order dated March 21, 1969. has referred under Section 256(1) of the Income Tax Act, 1961, the following question for answer, namely:
Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that no penalty could be imposed under Section 273(b) of the Income-tax Act, 1961, for default Under Section 18A (3) of the Income-tax Act, 1922
2. The circumstances, which it is necessary to notice for the disposal of this reference, briefly stated are these: Gokuldas, Pradeepkumar and Mukandas Vishnukumar, the two Hindu undivided families, Came into existence as a result of partial partition of the bigger Hindu undivided family of Seth Thakurdas Khivraj. The business of Seth Thakurdas Khivraj was taken over by a partnership firm of M/S Thakurdas Khivraj. The first assessment in the hands of the two undivided Hindu families after partial partition was to be made for the assessment year 1959-60. The two assessees had their sources of income from house property, share of profit from the firms of M/S Khivraj Rathi Ginaing and Pressing Factory, Beawar and M/S. Thakurdas Khivraj, Beawar. They also had dividends and speculative business. Their income exceeded the minimum limit for the purposes of Section 18A(3) of the Indian Income Tax Act, 1922 (hereinafter called 'the old Act') and because as the assessees failed to comply with the said provisions and did not submit, the estimate of advance tax payable by them before 15-3-1959, the Income-tax Officer imposed certain penalties on both the assessees. The assesses appealed and excepting for the reduction of penalties the appeal was dismissed. The assessees took up the matter before the Tribunal and challenged the penalties, firstly, on the ground that no penalty could be imposed under Section 273 of the Income-tax Act, 1861 (hereinafter called 'the new Act') because the assessments related to the years 1959-60 and 1960-61 to which the provisions of the new Act were inapplicable Secondly it was urged before the Tribunal that the estimates were filed on March 20, 1959 and March 30, 1960 and the default was only for a few days. The Tribunal, however, found relying on the decision in S.G. Magavi, Haveri v. Commissioner of Incometax, Mysore : 64ITR409(KAR) , Shakti Offest works v. Inspecting Assistant Commissioner of Income-tax, Nagpur and Anr. : 64ITR637(Bom) and Commissioner of Income-tax. Gujarat v. Hirlal Mohanlal Shah : 69ITR312(Guj) that the defaults made under Section 18A(3) of the old Act could not be proceeded against under the new Act. The Tribunal distinguished the case of this Court in Indra & Co. v. Union of India and Anr. (1967) 64 ITR 684 on the ground that the tacts of the Rajasthan case were different. The Tribunal found that there was a delay of 5 days only in respect of the assessment year 1959-60 and there was a reasonable excuse for such delay but held that so far as the year 1960-61 it could not be said that the assessee had any reasonable cause for the delay in the submission of the return. The Tribunal accordingly found that the penalti simposed by the Appellate Assistant Commissioner were not legal and if recovered should be refunded The Commissioner of Income-tax, Jaipur moved the Tribunal under Section 256(1) in regard to both the assessees and for both years of assessment and the Tribunal has referred the above-mentioned question in a consolidated form for our answer. I
3. We have heard Mr S.K. Mal Lodha, learned Counsel for the Revenue. No one appears for the assessees.
4. Whatever may have been the divergence of judicial opinion on the question referred to us when the Tribunal decided the appeals it seems that the divergence has now been authoritatively resolved by their Lordships of the Supreme Court in Jain Brothers and Ors. v. Union of India and Ors. : 77ITR107(SC) and Commissioner of Income tax, Delhi (Central) v. Singh Engineering Works P. Ltd. |6) In Jain Brother's case : 77ITR107(SC) the question raised before the Supreme Court was whether the provisions of Section 297(2)(g) of the new Act offended Article 14 of the Constitution of India and the Supreme Court held that it did not. It further observed that the penal provisions contained in the new Act were applicable to persons whose assessments were completed after April 1, 1962 and the crucial date for the purposes of the imposition of penalty was the date of the completion of the assessment because the satisfaction of the assessing authority could be reached only at that moment. Specifically the question of advance income-tax arose in the Commissioner of Income-tax, Delhi v. Singh Engineering Works P Ltd. (1976) 78 ITR 90 The assessee in this case had in respect of the years 1960-61 and 1961-62 filed certain estimated incomes before the coming into force of the new Act but the assessments were done later and the penalties were imposed under Section 273 of the new Act in respect of the defaults made under Section 18A(2) of the old Act. The Supreme Court said, following the decision in Jain Brothers' case : 77ITR107(SC) that Section 297(2)(g) was clearly applicable to this case inasmuch as the assessment was completed on or after the 1st day of April, 1962 when the new Act came into force. They further observed that the provisions of the new Act contained in Section 271 would apply mutatis mutandis to proceedings relating to penalty initiated in accordance with Section 297(2)(g) of the new Act. Incidentally, the case relied upon by the Tribunal in our case was also placed in the statement of the case before their Lordships of the Supreme Court but in view of Jain Brothers case : 77ITR107(SC) the question was answered in favour of the Department.
5. It will be interesting to recall that in Indra & Co.'s case(4) this Court had already held that Section 297(2)(a) was not discriminatory. The section provides that any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 31st day of March, 1962 or any earlier year which is completed on or after the 1st day of April. 1962 may be initiated and any such penalty may be imposed under this Act (New Act) In our opinion once the challenge of discriminaton in regard to Section 297(2)(g) is repelled as was done by this Court and subsequently by the Supreme Court the language of this section clearly provides that the new Act will apply in regard to the imposition of penalty in respect of any proceeding of any assessment which is completed on or after the 1st day of April 1962. There is clear emphasis on the date of the completion. In our cases the proceedings were completed after 1-4-1962.
6 In view of the authoritative decisions of the Supreme Court it is not necessary to notice the decisions in Commissioner of Income-tax, U.P, v. M.L. Gupta and Sons : 86ITR513(All) , Commissioner of Income-tax, Delhi Central) v. National Exhibitors and Commissioner of Income-tax, U.P. v. Manohar Lal and Co. : 82ITR711(All) in any detail because they have merely followed the Supreme Court's decision in Jain Brothers' case : 77ITR107(SC) .
7. We accordingly hold that on the facts and circumstances of the case the Tribunal was not right in holding that no penalty could be imposed under Section 273(b) of the Income-tax Act, 1961 for default under Section 18A(3) of the Income-tax Act, 1922. There will be no order as to costs.