JUDGMENT
1. The petitioner seeks reference of the following questions :
“(i) Whether there was any material before the Tribunal to come to the conclusion that the assessed had consciously or deliberately disregarded the statutory obligation placed upon it under section 139(1) of Income-tax Act, 1961, it having submitted the return voluntarily before issue of notice under section 139(2) ?
(ii) Whether the finding of the Tribunal that the Revenue had discharged the onus placed upon it under section 271(1)(a) is legally correct ?
(iii) Whether, in the light of the causes pleaded and circumstances pointed out, any person acting judicially could come to the conclusion that the assessed had no reasonable cause for the delay in furnishing the return under section 139(1) of the Income-tax Act, 1961 ?
(iv) Whether the Tribunal’s finding is not vitiated in law owing to their ignoring the most important fact on record and specifically brought to their notice during the hearing that the account books are closed on 31st October of each year and statement of accounts duly submitted to the company law department on that basis, the returns have to be prepared by adopting the accounting year as ending on 30th June each year which requires considerable time for getting the bifurcated accounts audited and, consequentially, the preparation of the return ?
(v) Whether the Tribunal did not err in law in holding that the appellant was not entitled to place any additional causes for delay in submitting the return which it had not placed before the lower authorities ?
(vi) Whether the provisions of section 271(1)(a) were legally and correctly applied to the case of the appellant ?
(vii) Whether the Tribunal was justified in law in rejecting the contention of the assessed that the levy of interest amounting to Rs. 4,24,224 under section 139(8) was by itself not a mitigating circumstance to take the case out of the purview of section 271(1)(a)
2. The present application arises out of the order of the Tribunal passed under section 254(1) of the Act. The petitioner had also moved an application under section 271(1)(a). On the rejection of the application under section 254(2), the assessed filed an application under section 256(2) in this court being Income-tax Case No.47 of 1989 but the same was dismissed by this court. That apart penalty was levied on the petitioner under section 273(a). A rectification application under section 254(2) was also filed with regard to the levy of the said penalty when that rectification application was dismissed. The petitioner filed two petitions in this court being Income-tax Cases Nos.24 and 25 of 1989 (Gangeshwar Ltd., (No.1) v. CIT [1991] 192 ITR 180, challenging the levy of penalty under section 273 and also challenging the order under section 254(2). The questions of law proposed therein were similar to questions Nos. 3 and 4 in the present application. Income-tax Cases Nos. 24 and 25 of 1989 (Gangeshwar Ltd., (No.1) v. CIT [1991] 192 ITR 180 (Delhi), were dismissed by this court, vide order dated January 28, 1991. In view of our aforesaid orders, we cannot agree with counsel for the petitioner that those orders have no bearing in this petition. In our opinion, the questions of law now proposed to be raised in questions Nos. 3 to 5 are identical or in any case pari materia with those raised in Income-tax Cases Nos. 24 and 25 of 1989 (Gangeshwar Ltd., (No. 1) v. CIT [1991] 192 ITR 180). Even on facts, we find that Tribunal has mentioned in its order under section 254(2) that they had omitted to take into consideration the difference in the dates when the books of account were closed. Nevertheless, according to the Tribunal, it make no difference to the conclusion which the Tribunal had arrived at, namely, that levy of penalty under section 271(1)(a) was justified. This conclusion is, in our opnion, a question of fact and, therefore, no question of law arises. We may, at this stage, mention that, in the present case, notice was directed to be issued only in respect of questions Nos. 3 to 6. For the aforesaid reasons, questions Nos. 3 and 4 are questions of fact. Question No.5 does not arise but question No. 6 is a question of law and we, therefore, direct the Tribunal to state the case and refer the following question to this court :
“Whether, on a correct interpretation of the provisions of section 139, the provisions of section 271(1)(a) were legally and correctly applied to the facts of the present case ?”