SABYASACHI MUKHARJI, J.

( 1 ) IN this reference under Section 256 (1) of the I. T. Act, 1961, the Tribunal has referred the following question to this court:"whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that penalty under Section 271 (1) was leviable in this case ?"the assessment year involved is 1970-71. The assessee was required to file its income-tax return by 30th June, 1970, for the assessment year 1970-71. The return, however, was filed on the 28th October, 1970. It was claimed before the ITO that the assessee had applied in Form No. 6 but no evidence could be produced in support of this claim. In the absence of any explanation, the ITO imposed a penalty of Rs. 10,386 under Section 271 (1) (a) of the I. T. Act, 1961. The ITO, as mentioned hereinbefore, did not take into consideration the application filed in Form No. 6, which was filed by the assessee, after the time for filing of the return had expired. The ITO proceeded to say that no evidence was produced by the assessee. The ITO did not say that he looked into the records and found that such an application was not filed. The ITO thereafter went on to observe that the asses

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