Satish Chandra, C.J. - For the asst. 1964-65 (the accounting year ending on 31-2-1963) the assessee filed a return showing a total income of Rs. 68,550. On 10-6-1968 the assessee filed a revised return indicating a total income of Rs. 1,34,354. The assessment made on 30-12-1968 was on a total income of Rs. 1,68,944. Penal proceedings were drawn up. The assessee contested and submitted that it had filed the original return on an estimated basis because the books of accounts had not been closed or audit completed. The audit was completed on 16-3-1965 and thereafter the revised return was filed when the case was fixed for hearing u/s 143(2).
2. The matter related to the asst. yr. 1963-64 in respect of which the assessee filed a return on 29-6-1965, this is to say, after the explanation added to s. 27(1)(c) of the IT Act, 1961 which came into force on 1-4-1964. The Tribunal cancelled the levy of penalty primarily on the ground that the authorities below had erred in applying the aforesaid Explanation to the facts of this case. It held that the Explanation was not operative retrospectively and it could not apply to the asst. yr. 1963-64.
3. The question as to the applicability of the Explanation to s. 271(1)(c) of the Act has been the subject matter of several decisions. This Court in the case of CIT, West Bengal-III, Calcutta v. Champlal Jain : 112ITR809(Cal) agreed with the view taken by the Allahabad High Court in the cases of CIT v. Data Ram Satpal : 99ITR507(All) , CIT v. S. Devendra Singh (1877) 108 ITR 314 and Addl. CIT v. Jiwan Lal Shah : 109ITR474(All) . It was held that the relevant and actual date is the date when the offence is committed and for the purpose of penalty offence committed is the date when the return is filed because the concealment is made therein. The relevant date would hence be the date of filing of the return irrespective of the assessment yet to which it may relate. If the return was filed after the Explanation came into force on April, 1964 the Explanation would be applicable.
4. In the present case, the offence was committed on 29-6-1965 when the return was filed for the asst. yr. 1963-64. In view of the aforesaid decision, with which we agree, the Explanation was attracted.
5. It that view, we answer the first question referred to us in the negative, in favour of the department and against the assessee.
6. Since the Tribunal has not considered the matter in the light of the Explanation, we deem it proper to send the case back to the Tribunal and the Tribunal will reconsider the matter in the light of the aforesaid Explanation. In the circumstances, we leave the second question unanswered.
7. There will be no order as to costs.
Suhas Chandra Sen, J. - I agree.