JUDGMENT

RANGANATHAN, J. :- Section 271 (1) (c) of the Income-tax Act, 1961 provides for the levy of penalty in the case of persons who conceal or furnish inaccurate particulars of the income chargeable under the Act for any assessment year. The Act, as it stood on 1-4-1962, provided that the amount of penalty so imposable was to be measured with reference to the tax sought to be evaded by such an act of the assessee broadly described hereinafter as concealment. The amount of penalty could not be less than 20 per cent or more than 150 per cent of the tax which would have been avoided as a result of the concealment. The Finance Act, 1968 amended Section 27 1 (1)(c) w.e.f. 1-4-1968. In addition to other changes (which are not relevant for our purposes), it changed the measure of the penalty. The penalty was now made dependent upon the amount of income concealed and not on the amount of the tax sought to be avoided. The minimum penalty was now to be 100 per cent of the income concealed and the maximum penalty could go up to 200 per cent of the income concealed. This amendment has substantially stepped up the. amount of penalty that could be levied.. in cases of concealment. It is the applicability of this amendment which is in issue in these appeals.

2. The respondent, M/s. Onkar Saran & Sons, is a Hindu Undivided family. For the assessment years 1961-62 and 1962-63, it filed returns of income showing total incomes of Rs. 18,935/- and Rs. 24,943/- respectively. The exact dates of these returns are not available on record. Assessments were made on the assessee determining its total income at Rs. 28,513 for the assessment year 1961-62 and Rs.28,463/- for the assessment year 1962-63. The assessment orders are dated 30-3-1962 and 28-1.1-1963 respectively.

3. Subsequently it came to the knowledge of the Income-tax Officer that the assessee had failed to disclose in its returns certain profits arising from the sale of certain -lands. He, therefore, issued notices under Section 148 of the Income-tax Act, 1961 for both the years on the 9th March, 1965. If the assessee had been prompt in filing returns in response to these notices, the problem that it now faces may not have arisen. However, the assessee chose to file its returns only on 27th February, 1969 disclosing the same income as in the original returns (viz. Rs. 18,935 and Rs. 24,943 respectively) and the reassessments were completed on the 6th March, 1969. The total income now determined was Rs. 52,185/ -for the assessment year 1961-62 and Rs. 44,017/- for the assessment year 1962-63. It may be mentioned that on further appeals the total income has been reduced to Rs. 41,923/- for the assessment year 1961-62 and Rs.34,547/- for the assessment year 1962-63 and these assessments have become final. It will be noted that the difference between the income returned in the original returns and income finally assessed was Rs. 22,988/- for the assessment year 1961-62 and Rs. 9,604/- for the assessment year 1962-63.

4. Having made the above additions in the reassessment, the Income-tax Officer initiated proceedings under Section 271 (1)(c) for the failure on the part of the assessee to return the income from the sale of lands. It may be mentioned here that originally the Income-tax Officer was of the opinion that the income from the lands constituted "business income" but. subsequently, it has been held that the above income was chargeable only under the head "Capital Gains". The penalty proceedings were continued (as contemplated by the Act) by the Inspecting Assistant Commissioner who, by his orders dated 4-3-1971, imposed penalties of Rs. 24,000/ - and Rs. 10,000/ - respectively for the two assessment years in question.

5. The assessee preferred appeals to the Income-tax Appellate Tribunal. The Tribunal agreed with the Inspecting Assistant Commissioner of Income-tax that there was a case for the levy of penalty. It was, however, of opinion that since the penalty proceedings related to the ass