Judgment 1. At the instance of the Revenue, the Income-tax Appellate Tribunal, Patna Bench, Patna, made a reference to this court of the following question of law for its opinion which pertains to the assessment for the year 1977-78 : "Whether in view of the fact that the assessment in this case was initially completed under Sec. 143(1) of the Income-tax Act, 1961, on September 22, 1977, and in view of the provision of Sec. 139(5) of the Income-tax Act restricting the fine for the filing of a revised return before the completion of assessment, the Tribunal was justified in holding, that the return filed by the assessee on January 5, 1980, was a revised return declaring a correct income and on that basis cancelling the penalty of Rs. 11,944 imposed by the Income-tax Officer under Sec. 271(1)(c) ?" 2. The facts, in brief, show that the return of income by the assessee was filed on September 15, 1977. The assessment was completed on this return on September 22, 1977, under Sec. 143(1) of the Income-tax Act, 1961. Some time in June, 1979, the Income-tax Officer issued notice under Sub-sec. (2) of Sec. 143 of the Act for correction of the assessment. After such notice was issued to the assessee, he filed a revised return on January 5, 1980. Subsequently, the assessment was completed and penalty was imposed. We feel somewhat handicapped as the proper relevant dates relating to issuance of notice, the subsequent assessment, etc., have not been mentioned in the paper book. 3. Mr. Vidyarthi, learned counsel for the Revenue, submitted that the return filed on January 5, 1980, could not be a revised one under Sec. 139(5) of the Act and it was, therefore, wrong to proceed on that premise. 4. It is admitted that once a notice under Sec. 143(2)(b) of the Act was issued, it is, in effect, setting aside the assessment made earlier under Sec. 143(1) of the Act. We do not, therefore, find that the Revenue is correct in its submission that the return filed on January 5, 1980, could not be treated as revised return when there was no assessment under Sec. 143(1) existing as per the return filed on September 15, 1977. Further from the nature of the question whether the penalty could have been imposed under Section 271(1)(c) of the Act, it would appear to be a question of fact. Further from the nature of the question whether the penalty could have been imposed under Section 271(1)(c) of the Act, it would appear to be a question of fact. 5. In this view, we answer the question in the affirmative and in favour of the assessee. There will be no order as to costs.