JUDGMENT Satish Chandra, J. - This reference relates to the assessment years 1951-52 and 1952-53. The assessee was a Hindu undivided family. The assessee did not file the return of income for either of these two years in spite of service of notice u/s 22 (2) of the Indian income tax Act. 1922. The income tax Officer assessed the family to the best of his judgment to an income of Rs. 63,000/- for the assessment year 1951-52 and to Rs. 73,000/- for the -assessment year 1952-53. The assessee filed an appeal which was dismissed by 'the Appellate Assistant Commissioner as barred by time. The assessee. thereafter. filed a revision u/s 33-A of the Act. The Commissioner of income tax rejected the submission of the assessee that the notice u/s 22 (2) of the Act was not properly served but on the merits the assessable income was reduced to Rs. 50,000/- and 40.000/-respectively for the two years. 2. Thereafter. the income tax Officer issued notices u/s 28 of the Act to the assessee requiring it to show cause why penalty should not be imposed for the two years in question. In answer to these notices the assessee appeared before the income tax Officer -and filed an objection stating that the notices u/s 22 (21 of the Act were not validly served upon the assessee; in the next place it was alleged that there had been a partial partition in the joint family with the result that the business was taken away from the family. The family was not liable to be assessed to tax on the business income. The income tax Officer rejected both these pleas and imposed a penalty in the sum of Rs. 5,000/- and Rs. 2,500/- respectively in respect of the two assessment years in question. 3. The assessee went up in appeal, but the appeals were dismissed. The assessee then filed a second appeal before the income tax Appellate Tribunal which also met a similar fate. 4. At the instance of the assessee the Tribunal has submitted this Statement of the Case for the opinion of this Court on the following question of law: Whether on the facts and in the circumstances of the case penalty u/s 28 (1) (a) could have been levied ? 5. 4. At the instance of the assessee the Tribunal has submitted this Statement of the Case for the opinion of this Court on the following question of law: Whether on the facts and in the circumstances of the case penalty u/s 28 (1) (a) could have been levied ? 5. Learned counsel for the assessee did not seriously challenge the finding regarding the issue and service of notice u/s 22 (21 of the Act. He. however, questioned the opinion of the Tribunal on the other question. namely, that there had been a partial partition in the family. On this point the Appellate Assistant Commissioner held; Not having made any claim about partial partition in the family business, the appellant is debarred from agitating this point in the penalty proceeding which is merely consequential. On this view the plea was rejected. There is nothing in the order of the Appellate Commissioner to suggest that he considered the merits of the plea end held that the assessee had failed to prove the alleged partition. 6. Before the Tribunal it was contended on behalf of the assessee that the principle of estoppel and res judicata did not apply to the income tax proceedings. This submission appears to have been repelled by the Tribunal. The Tribunal refused to rely upon a finding of partial partition given by the income tax authorities in the case of the assessee for the subsequent year, that is. 1953-54 on the ground that: The finding of the income tax Authorities to the effect that there was a partition long before, which was given in the proceedings for the subsequent year, would not affect the issue in these years, because the assessee did not make that claim before the income tax Officer in these years. Apparently the Tribunal was of opinion that unless a plea was taken in the regular assessment proceedings for the years in question such a plea could not be taken in penalty proceedings for the same years. On this view the Tribunal refused to consider the effect of the finding in the subsequent years. It also did not go into the merits of the plea. 7. The precise question of law that arises is: Whether the Tribunal was right in holding that the assessee is debarred from raising a plea in penalty proceedings if he had not raised that plea in the regular assessment proceedings ? It also did not go into the merits of the plea. 7. The precise question of law that arises is: Whether the Tribunal was right in holding that the assessee is debarred from raising a plea in penalty proceedings if he had not raised that plea in the regular assessment proceedings ? Under Section 28 (1) (a) of the Act penalty could be imposed if the income tax Officer is satisfied that a person has without reasonable cause failed to furnish the return of his total income. Clause (b) of the proviso to Section 28 says that where a person has failed to comply with a notice under sub-clause (21 of Section 22 and or Section 34 and proves that he is not in fact liable to tax. the penalty imposable under this sub-section shall be a penalty not exceeding twenty-five rupees. It is thus clear that the assessee is entitled to establish in the penalty proceedings that he had not failed to furnish the return of his income without reasonable cause. Further he can also prove that he has no income liable to tax. even though he failed to comply with the notice u/s 22 (2) of the Act in the sense that he had failed to file the return of his income. The statute, therefore. specifically permits the asses-see to prove certain plea, which may equally be relevant for the regular assessment in penalty proceedings without any condition to the effect that such pleas will not be permitted to be raised in penalty proceedings unless they were raised in regular assessment proceedings. 8. It is true that the regular assessment order after it has become final, cannot be attacked or affected by any plea taken in the penalty proceedings. But that does not mean that the assessee is debarred from taking appropriate pleas which may affect either the levy of penalty as such or the quantum thereof. 9. In Commissioner of income tax v. A.A.R. Chettiar Firm, (1933) 1 ITR 285 = AIR 1933 Rang 30 (FB) the Rangoon High Court held that in an enquiry u/s 28. But that does not mean that the assessee is debarred from taking appropriate pleas which may affect either the levy of penalty as such or the quantum thereof. 9. In Commissioner of income tax v. A.A.R. Chettiar Firm, (1933) 1 ITR 285 = AIR 1933 Rang 30 (FB) the Rangoon High Court held that in an enquiry u/s 28. the evidence adduced by the assessee purporting to disclose the real income of the assessee is relevant and admissible in order to show either that no penalty ought to be imposed or that the amount of penalty ought to be less than the maximum prescribed u/s 28 though not for the purposes of varying or affecting the assessment of tax made, and the income tax Officer was not justified in refusing to admit such evidence. In The Commissioner of Income Tax Madras Vs. Khoday Eswarsa and Sons, AIR 1972 SC 132 the Supreme Court observed that no doubt the original assessment proceedings, for computing the tax mar be a good item of evidence in the penalty proceedings but the penalty can. not be levied solely on the basis of the reasons given in the original order of assessment. 10. It is thus clear that the regular assessment order is not the final word upon _ the pleas taken therein or which might have been taken at that stage. The assessee is entitled to show cause in penalty proceedings and to establish by the material and relevant facts which may go to affect his liability or the quantum of penalty. He cannot be held to be debarred from taking appropriate pleas simply on the ground that such a plea was not taken in the regular assessment proceedings. 11. Our answer to the question referred to us is that without going into this merits of the plea that there had been a partial partition in the family as alleged by the assessee penalty u/s 28 (1) (a) could not have been validly levied. 12. Since the answer is in favor of the assessee it is entitled to its. costs which we assess at Rs. 200/-. The fee of the learned counsel for the Department is also assessed at the same-figure.