J.S. Verma, C.J.
1. This is a reference under Section 256(1) of the Income-tax Act, 1961, at the instance of the Revenue to answer the following question of law, namely :
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that penalty order passed under Section 271(1)(c) on March 30, 1979, imposing a penalty of Rs. 3,700 was barred by limitation prescribed under Section 275 of the Income-tax Act, 1961 ?'
2. The relevant assessment year is 1972-73. The Income-tax Officer imposed penalty under Section 271(1)(c) of the Act on the assessee for concealment of particulars of income. On appeal, the Appellate Assistant Commissioner set aside the penalty and remanded the matter to the Income-tax Officer for a fresh decision after giving the assessee an opportunity of being heard. The Income-tax Officer passed a fresh order after hearing the assessee and again imposed penalty. The assessee appealed to the Appellate Assistant Commissioner and contended that the Income-tax Officer's fresh order imposing the penalty was time-barred. The Appellate Assistant Commissioner held that the Income-tax Officer's order imposing penalty passed on March 30, 1979, was beyond time since it was passed after the period of limitation prescribed by Section 275 of the Act. The Revenue preferred an appeal to the Tribunal which has been rejected. The Tribunal has held that the order dated March 31, 1978, passed by the Appellate Assistant Commissioner remanding the matter to the Income-tax Officer was not within the scope of Section 251(1)(b) of the Act. However, even otherwise, the Tribunal has held that the fresh order dated March 30, 1979, imposing penalty after remand was also time-barred. Hence, this reference at the instance of the Revenue.
3. In the present case, it is not necessary to express any concluded opinion on the question of the Appellate Assistant Commissioner's power of remand under Section 251(1)(b) of the Income-tax Act, 1961. The question of limitation for making a fresh order imposing penalty on remand by the Appellate Assistant Commissioner can be decided in the present case assuming the existence of power of remand under Section 251(1)(b). The order of the Appellate Assistant Commissioner making a remand was passed on March 31, 1978, and the Income-tax Officer thereafter imposed penalty by a fresh order dated March 30, 1979, after almost a year of the order of remand. The question is whether the penalty imposed in this mariner is hit by the bar of limitation prescribed in Section 275 of the Act. The relevant part of Section 275 is as under :
'275. Bar of limitation for imposing penalties. -- No order imposing a penalty under this Chapter shall be passed --
(a) in a case where the relevant, assessment or other order is the subject-matter of an appeal to the Appellate Assistant Commissioner under Section 246 or an appeal to the Appellate Tribunal under Sub-section (2) of Section 253, after the expiration of a period of--
(i) two years from the end of the financial year in which the proceedings, in the course of which action for imposition of penalty has been initiated, are completed, or
(ii) six months from the end of the month in which the order of the Appellate Assistant Commissioner or, as the case may be, the Appellate Tribunal is received by the Commissioner, whichever period expires later ; ...'
4. An order imposing penalty under Section 271 is appealable to the Appellate Assistant Commissioner under Section 246. Assuming that remand could be validly made under Section 251(1)(b), as claimed by the Revenue, the limitation prescribed under Section 275(a)(ii) for making an order imposing penalty is six months from the end of the month in which the order of the Appellate Assistant Commissioner is received by the Commissioner, which is admittedly the period which expired later in the present case. It is also an admitted fact that the Income-tax Officer's fresh order imposing penalty passed on March 30, 1979, was made after the expiry of this period of six months prescribed under Section 275(a)(ii). This being so, the Income-tax Officer's order imposing penalty passed on March 30, 1979, was barred by limitation prescribed under Section 275 of the Act.
5. We may also mention that there was no provision corresponding to sub-clause (ii) of clause (a) of Section 275 in Section 33B of the Indian Income-tax Act, 1922, and this provision was also not present in Section 275 of the 1961 Act, as originally enacted. For this reason, the decisions rendered in connection with Section 33B of the 1922 Act or Section 275 of the 1961 Act, as initially enacted are distinguishable. The Supreme Court decision in CIT v. National Taj Traders [1980] 121 ITR 535, relates to Section 33B of the 1922 Act and the decision of this court in J. P. Sharma and Sons v. CIT , relates to Section 275 of the 1961 Act prior to its amendment whereby sub-clause (ii) of clause (a) of Section 275 has been inserted. After this amendment in Section 275 with which we are concerned in the present case, it is clear that the bar of limitation for imposing penalty applies not only to the initial order imposing penalty but also to an order of penalty imposed as a consequence of the appellate order. Accordingly, the Tribunal's view that the fresh order imposing penalty was time-barred is justified.
6. Consequently, the reference is answered against the Revenue and in favour of the assessee by holding that the Tribunal's view is justified. No costs.