1. The Income-tax Appellate Tribunal, B Bench, Patna, has submitted the statement of case under Sec.256(1) of the I.T. Act, 1961 (hereinafter to be referred to as "the Act"), and referred the following question for the opinion of this court:

"Whether, on the facts and in the circumstances of the case, the Tribunal was correct in upholding the order of the Appellate Assistant Commissioner cancelling the penalty of Rs. 33,653 levied by the Income-tax Officer under Sec.271(1)(a) of the Income-tax Act, 1961 ?"

2. The facts are not at all in controversy. The statement of the case relates to the assessment year 1965-66. The assessee is a partnership concern deriving income from coal mining business. A notice under Sec.139(2) dated June 1, 1965, was issued by the ITO, Colliery Circle, Dhanbad. The assessee, however, filed a return before the ITO, Special Circle, Ranchi, on August 6, 1966 (when the case was transferred to him), with a mark "duplicate" mentioned at the top of the return. As there was delay in riling the return, the ITO levied penalty of Rs. 33,653 under Sec.271(1)(a) of the Act for the late filing of the return. A copy of that order has been marked as annex. A.

3. T