JUDGMENT

Pathak, J. - The following question has been referred to this court by the Income Tax Appellate Tribunal:

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in cancelling the penalty of Rs. 8,732 imposed on the assessee ?"

2. The assessee is a registered firm. The relevant assessment year is 1958-59. On April 23, 1962, the assessee filed a voluntary return of its income of the previous year. The Income Tax Officer observed that the return should have been filed by July, 1958, as provided in Section 22(1) of the Indian Income Tax Act of 1922. The Income Tax Officer made an order levying a penalty u/s 271(1)(a) of the Act of 1961. The assessee appealed to the Appellate Assistant Commissioner but without success. He then appealed to the Income Tax Appellate Tribunal. The Tribunal held that the provisions of Section 271(1)(a) could not be invoked in the case because the new Act did not specifically declare that a default in complying with Section 22(1) of the Act of 1922 would be deemed to be a default in complying with Section 139 of the Act of 1961. At the instance of the Commissioner of Income Tax, the Tribunal has referred the question set out