ORDER 1. The Tribunal has stated the following question for the opinion of this Court u/s 256(1) of the income tax Act, 1961 ('the Act1): "Whether, on the facts and in the circumstances of the case, the Tribunal was legally justified in confirming the Appellate Assistant Commissioner's interpretation of the words 'assessed tax' in the case of a registered firm for the purposes of levying penalty u/s 271(1)( a ) of income tax Act, 1961 ?" The assessee is a partnership firm. Assessment year concerned herein is 1973-74. The assessee did not file its return within the time prescribed; it filed it with a delay of thirteen months. On 2-1-1976 the ITO made an assessment order determining its income and tax payable and also continuing the registration since the relevant papers were found in order. The assessment order, however, says that penalty proceedings u/s 271(1)( a ) of the Act have been initiated separately. A notice was served upon the respondent to show cause why penalty should not be levied upon it u/s 271 (1)( a ). The assessee failed to submit any explanation. Accordingly, the ITO levied penalty. The relevant portion reads thus: "I am thus satisfied that the assessee has without reasonable cause failed to furnish the return of income with the time allowed u/s 139(1). I, therefore, impose a penalty of Rs.2,200 for 13 months default at the rate of 2 per cent per month of tax payable for each month of default. Issue notice of demand and challan." The assessee appealed to the AAC. Certain explanation was put forward by the assessee for the delay but it was not accepted. However, the penalty was deleted by the AAC on the following reasoning: "The learned counsel had another argument, namely that the calculation of the penalty was incorrect. He pointed out to the provisions of section 271 (1)( a )( i )( b ) and the Explanation thereto. He says that 'assessed tax' means tax as reduced by the sum, if any, deducted at source under Chapter XVII-B or paid advance under Chapter X VII-C. In the present case the tax chargeable was Rs. 1,687 and after deducting tax paid in advance to the tune of Rs. 1,518 the balance tax payable came to Rs. 169 only, therefore, the penalty levied at Rs. 2,200 was excessive. 1,687 and after deducting tax paid in advance to the tune of Rs. 1,518 the balance tax payable came to Rs. 169 only, therefore, the penalty levied at Rs. 2,200 was excessive. There is sufficient merit in this contention of the appellant and considering the fact that penal interest to the tune of Rs. 1,313 has already been charged, there is no - justification for the imposition of penalty at Rs. 2,200 u/s 271(1)( a ). The same is therefore, cancelled." 2. The department appealed to the Tribunal. It was argued that the AAC erred in setting aside the ITO's order which calculated the penalty amount correctly by treating the assessee-firm as a unregistered firm as provided in sub-section (2) of section 271. This argument was rejected by the Tribunal in the following words: "We have perused the orders of the authorities below for our consideration along with the papers placed before us. We find that nowhere the ITO has shown the/calculation of the penalty treating the assessee-firm as URF. We find that the AAC was justified in taking into account the meaning of the words 'assessed tax' as submitted by the learned counsel for the assessee. Having regard to the facts of the case as discussed in the preceding paragraph and as such argued -before us, we find that the AAC was justified in cancelling the penalty and there is no merit in the appeal of the revenue. In this view of the matter we uphold the orders of the AAC In the result, the appeal of the revenue is dismissed." It is thereupon that the revenue applied for obtaining the present reference. 3. It is true that sub-section (2) of section 271 provides that when a penalty is imposed upon a registered firm, the penalty imposable under sub-section (1) of section 271 shall be the same amount as would be imposable on that firm, if that firm were an unregistered firm' but as has rightly been pointed out by the Tribunal, there is nothing to show that the ITO calculated and levied the penalty of Rs. 2,200 on this basis. No attempt has been made before the either authority to justify the amount on the said basis. A look at the figures in the assessment order would disclose that the basis now being suggested by the revenue for sustaining the said amount of penalty is prima facie untenable. 2,200 on this basis. No attempt has been made before the either authority to justify the amount on the said basis. A look at the figures in the assessment order would disclose that the basis now being suggested by the revenue for sustaining the said amount of penalty is prima facie untenable. It is evident that the ITO had arrived at the said figure of penalty amount on some method of calculation which is not clear to us. The expression 'assessed tax' has been defined by the Act to mean tax as reduced by sum, if any, deducted at source or paid by way of advance tax as the case may be. In the circumstances of the case we are of the opinion that the Tribunal was justified in dismissing the revenue's appeal. In our opinion, the case turns on facts and no question of law really arises from the order of the Tribunal. Be that as it may, the question referred is answered in the affirmative, i.e., in favour of the assessee and against the revenue. No costs.