Satisii Chandra, C.J.
1. The Tribunal has submitted the statement of case and has referred the following questions of law for our opinion :
' 1. Whether, on the facts and in the circumstances of the case, the ITO had jurisdiction to levy penalty under Section 271(1)(a), I.T. Act, 1961, for the delay in the submission of the first return filed under Section 139(4), I.T. Act, 1961, when the assessment was made with reference to the second return submitted under the same provision ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in its view that the assessment, though made on a protective basis, lost its character as such and became a regular assessment and in upholding the levy of penalty in that view '
2. The learned counsel for the assessee submitted that in view of the final orders passed on the quantum side, the first question does not surviveand the assessee does not desire to press it. Hence, we do not consider it worth while to deal with it or to answer it.
3. The facts of the case are simple and clear. The assessment year in question is 1963-64. For this year the return was due by June 30, 1963, under Section 139(1), I.T. Act, 1961. The return was filed by the assessee on September 14, 1963, showing a total income of Rs. 10,294. On September 7, 1967, the assessee filed a revised return showing a total income of Rs. 18,429. During the course of the assessment proceedings, the ITO issued notice to the petitioner requiring to show cause why penalty under Section 271(1)(a) should not be imposed for the delay in filing the return. After hearing the assesSee, the ITO imposed a penalty of Rs. 20,476. The assessee went up in appeal and then in further appeal to the Tribunal but failed.
4. It is true that in the assessment order the ITO held that the income in question was really that of the husband of the assessee and the assesses was virtually a benamidar. But none the less he chose to assess the assessee and not the husband. Though the assessment was protective, it became a substantive assessment because no assessment was made in relation to the income returned by the assessee in the hands of any other person, namely, the husband.
5. The assessment order was treated as a substantive assessment order and in fact some relief was granted to the petitioner in appeal. On these admitted facts, Section 271(1)(a) was clearly applicable. That section required the ITO to be satisfied that any person has without any reasonable cause failed to furnish the total income which he was required to furnish under Sub-section (1) of Section 139, In the present case, the assessee was the person who could be said to have been required to file the return under Section 139(1) because she did in fact furnish the return which was taken as the basis of the assessment She was hence the assessee who was undoubtedly late in filing the return. The authorities below have concurrently found that the assessee gave no reasonable explanation for the delay. In fact, the assessee did not appear before the ITO in respect to the notice issued for drawing up penalty proceedings.
6. Since no substantive assessment was made in the hands of any other person, the assessment made in pursuance of the return filed by the assessee was the substantive assessment. The assessee was hence liable to the levy of penalty.
7. We, therefore, return question No. 1 unanswered and we answer question No. 2 in the affirmative, in favour of the Department and against the assessee.
8. There will be no order as to costs.
9. I agree.