C.S.P. Singh, J.

1. THE Income-tax Appellate Tribunal, Delhi Bench "C", has referred the following question for our opinion :

"Whether, on the facts and in the circumstances of the case, the minimum penalty to be levied was to be determined by reference to the tax that would have been avoided if the first return submitted had been accepted or to the tax that would have been avoided if the second revised return submitted by the assessee had been accepted ? " The assessee is a registered firm doing business in tobacco. For the assessment year 1962-63, the assessee submitted a return of income on August 17, 1962, declaring an income of Rs. 32,665. He filed a revised return showing an income of Rs. 55,000 on July 30, 1963. A second revised return was submitted on May 14, 1965, showing an income of Rs. 85,000.

2. AN assessment order was first passed on May 21, 1964, i.e., before the second revised return was filed and the total income computed by the Income-tax Officer was Rs. 1,62,257. On appeal, the order of the Income-tax Officer was confirmed, but the Tribunal set aside the assessment order and directed the Income-tax Officer to make a fresh assessment after giving the assess