AJIT K. SENGUPTA, J.

( 1 ) THIS reference under Section 256 (2) of the I. T. Act, 1961, for the assessment year 1963-64 relates to the imposition of penalty of Rs. 52,148 under Section 271 (1) (a) of the said Act.

( 2 ) THE assessee should have filed the return of income on or before June 30, 1963. The return was, however, filed on January 2, 1965. The assessee was, therefore, asked to explain as to why the return was filed belatedly and as to why penalty should not be imposed on the ground of failure to file the return of income within time under s, 139 (1) and 139 (2 ). The assessee replied that the books of account were not under the control of the company and that the auditing was completed on September 10, 1964, and the same was placed before the general body meeting on October 23, 1964. The ITO refused to believe that the books of account for the calendar year 1962 (i. e. , for the relevant assessment year), were also taken away by the official receiver. The ITO observed that the books of account were returned on September 19, 1963, to the assessee while the areturn was filed on January 2, 1965. The first ground was rejected by the ITO. The second ground was also rejected a

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