JUDGMENT

S. MOHAN, J.:- All the three appeals can be dealt with under the common judgment since the assessment years are different while the assessee -the respondent is one and the same. The three assessment years in question are 1964-65, 1965-66 and 1966-67.

2. For the year 1964-65, the assessee returned an income of Rs. 48,000/ -while he was assessed on an income of Rs. 58,557/- imposing a penalty of Rs. 9,690/ - For the year 1965-66, the assessee returned an income of Rupees 45,000/- He was assessed on an income of Rs.52,337/- together with the penalty of Rs. 6.1115. For the year 1966-67, he returned an income of Rupees 5 1,000 while he was assessed on an income of Rs. 62,560 and a penalty of Rs. 3,915 was imposed. It requires to be stated, at this stage, that for the respective assessment years the returns, as per the statute, ought to have been filed on July 31, 1964, July 31, 1965 and July 31, 1966 respectively. However, the assessee filed the returns for all these years on March 24, 1967. It was the filing of these belated returns which obliged the assessing authority to impose penalty as warranted under Section 271 (1)(a) of the Income-tax Act, 1961, (here in after referred to as "the Act"). When the assessee questioned the correctness of the imposition of penalty by way of an appeal against the order of the Income-tax Officer; the Appellate Assistant Commissioner confirmed the same. Thereupon, the matter was taken up to the Tribunal. The Tribunal deciding in favour of the assessee referred the following question of law:

"Whether in the facts and circumstances, the tribunal is justified in law in cancelling the penalty levied on the assessee under Section 271 (1)(a) for the three assessment years 1964-65 to 1966-67."

3. Originally, the matter came up before Division Bench of the Gujarat High Court. However, the matter was referred to the Full Bench because the Division Bench found itself unable to agree with the view taken by the earlier Division Bench ruling reported in (1975) 36 STC 347 (Guj), Morvi Cotton Merchants Industrial Corpn. Ltd. v. State of Gujarat and in Special Civil Application No. 1059 of 1972 decided by the same Bench on July 18, 1974: (reported in 1975 Tax LR 1589) (Guj). In those cases, the Division Bench took the view under the provisions of Section 271(1)(a) of the Income-tax Act, 1961. Under the Sales Tax Act, where also the words "without reasonable cause" have been set out in Section providing for penalty, the burden is on the Revenue to prove absence of "reasonable cause."

4. Thus, the Division Bench felt since these decisions, though related to sales tax, had a direct bearing on an interpretation of Section 271(1)(a) of the Act the reference comes to be made.

5. The Full Bench of the Gujarat High Court, after referring to the case law, ultimately disagreed with the view expressed by the Full Bench of the Kerala High Court reported in 103 ITR 149, Commr. of Income-tax v. Gujarat Travancore Agency and concluded as under [1979 Tax LR 211 at p. 223]:

In the light of the above discussion, our conclusions are as follows.-

"(1) Under Section 271(1)(a) of the Income-tax Act, 1961, failure without reasonable cause to furnish return in question is an ingredient of the offence;

(2) Section 271(1)(a) provides for penalty in cases where the assessee has either acted deliberately in defiance of law or was guilt of conduct contumacious or dishonest, or acted in conscious disregard of his obligation.

(3) The legal burden is on the Department to established by leading some evidence that prima facie the assessee has without reasonable cause failed to furnish the return without the time specified in Section 271(1)(a) read with the relevant other Sections referred to in that section. Once this initial burden which may be slight has been discharged by the Department, it is for the assessee to show as in a civil case on balance of probabilities that he had reasonable cause in failing to file the return within the time specif