K.C. Agrawal, J.

1. THE matter relates to the assessment years 1965-66 to 1967-68. Radhey Shyam, the assessee, is a partner in two firms, viz., M/s. Radhey Shyam Babu Ram and M/s. Radhey Shyam Baijnath Prasad. THE details of the returns filed for these three years by the assessee are as follows :

1965-66:

THE original return was filed on October 13, 1965. THE revised return was filed on December 21, 1968.

In the original return the income disclosed was Rs. 10,667, whereas in the revised return the income shown was Rs. 29,285.

THE assessment was completed on a total income of Rs. 42,848.

1966-67 :

THE original return was filed on April 29, 1966. THE revised return was filed on January 12, 1968.

In the original return the income shown by the assessee was Rs. 35.251.

This was, however, enhanced to Rs. 38,850 in the revised return. THE assessment was completed on an income of Rs. 40,270.

1967-68:

THE original return was filed on September 14, 1967. THE revised return was filed on January 23, 1968.

In the original return the assessee showed the total income at Rs. 28,020. This was, however, raise4 to the figure of Rs. 55,700 in the revised return.

THE assessment was completed on a total income of Rs. 62,006.

2. AS the ITO was of the opinion that the assessee had concealed the income in the aforesaid three years, and since the minimum penalty leviable was found to be more than Rs. 1,000, he referred the matter of imposition of penalty on the assessee to the IAC. The assessee contended before the IAC that the filing of revised returns, surrendering the cash credits, was purely voluntary, hence there was no concealment of income. The IAC held that the revised returns were filed by the assessee only when the ITO had suspected the concealment. In this view, the IAC levied penalties of Rs. 6,420, Rs. 5,590 and Rs. 11,160 for these three years.

The assessee took the matter in appeal. The Tribunal held that the filing of revised returns in the aforesaid three years was voluntary, and that it was not correct that the revised returns were filed by the assessee only after he was confronted with the deposits of cash credits in the account books of the firm. Since the Tribunal found that the assessee was not guilty of concealment of income in the year 1965-66, it exonerated the assessee from the levy of penalty altogether. But, having held that the non-disclosure of the amounts in the years 1966-67 and 1967-68, was not innocent and was wilful, the Tribunal held that penalty was imposable on the assessee in the aforesaid two years. The Tribunal, however, held that penalty had to be imposed on the assessee on the basis of the figures given in the revised returns. In other words, the view of the Tribunal was that penalty could not be imposed with reference to the original returns.

3. FEELING aggrieved, the department filed an application under Sub-section (1) of Section 256 of the I.T. Act, 1961. As the Tribunal was satisfied that a question of law arose for decision in the aforesaid three cases, it solicited the opinion of the High Court on the following question:

"Whether, after the assessee voluntarily filed a revised return, under Section 139 of the Income-tax Act, 1961, penalty is imposable under Section 271(lXc) of the Income-tax Act, 1961, on the basis that the assessee furnished inaccurate particulars in the original return ?"

4. THE main question that arises for decision in this case is whether the filing of the revised returns under Sub-section (5) of Section 139 of the I.T. Act was justified. If the answer to the aforesaid question is in the affirmative, the penalty would be imposable on the assessee with reference to the second or revised returns. But, if the answer is in the negative, penalty had to be imposed on the basis of original returns. At this place, it would be convenient to reproduce Sub-section (5) of Section 139 of the I.T. Act, which deals with the filing of the revised returns. It reads:

"If any person having furnished a return