Nazir Ahmad, J.

1. A statement of the case has been submitted, by the Income-tax Appellate Tribunal, "B" Bench, Patna, under Sec.256(1) of the I.T. Act, 1961 (hereinafter to be called is "the Act"), referring the follow­ing question for the opinion of this court:

"Whether, on an appeal against an order of penalty imposed by the Income-tax Officer under Sec.271(1)(a) for default under Sec.139(2) of the Act, the Tribunal on facts was right in sustaining the penalty for the period of default falling under Sec.139(1) ?"

2. The relevant facts of the case can be culled out from the statement of the case. The assessee is a firm and the assessment year involved is 1966-67.

3. The ITO imposed a penalty of Rs. 6,110 under Sec.271(1)(a) of the Act due to the default of delayed submission of return, rejecting the explanation of the assessee that a return was sent by post on June 23, 1966, since he found that the said return was not available in his record. The order of the ITO has been annexed and marked as annexure A forming part of the statement of the case.

4. The assessee went in appeal before the AAC and it was submitted that no notice under Sec.274 of the Act was served on the as