Honble Dr. LAKSHMANAN, CJ.–This reference application has been filed against the order dated 24.3.1999 passed by the Income Tax Appellate Tribunal, Jaipur in R.A. No.2/JP/1999 arising out of I.T.A. No. 1647/JP/92 for the assessment year 1986-87. (2). The brief facts giving rise to this reference application are: that the assessee had furnished statement of advance of tax on 9.9.1995 showing advance tax payable at Rs. 15,167/- on the income of Rs. 1,21,530/-. However, assessment was completed on the income of Rs. 14,64,730/- on which the assessed tax came to Rs. 3,37,535/-. In view of these facts, the Assessing Officer imposed penalty under s. 273(2)(a) of the Income Tax Act, 1961 (for short `the Act) at Rs. 20,000/-. (3). Being aggrieved by the order of the Assessing Officer, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals), who upheld the order of the Assessing Officer vide his order (Annexure/2) dated 2.6.1992. Thereafter, the assessee preferred a second appeal before the Income Tax Appellate Tribunal, and the Income Tax Appellate Tribunal vide its order (Annex. 3) dated 29.9.1998 allowed the appeal filed by the assessee and opined that having accepted the reasonableness of the cause by which the assessee was prevented to file the return of income in time, it was not proper in not accepting the same circumstances, so far as penalty proceedings under Sec. 273 of the Act are concerned. Accordingly, the penalty order passed by the Assessing Officer was set aside. (4). Aggrieved with the order (Annex.3) dated 29.9.1998 passed by the learned Income Tax Appellate Tribunal, the Department preferred a reference application under Sec. 256(1) of the Act for a direction to the Income Tax Appellate Tribunal, Jaipur to refer the following question of law for the opinion of this Court; ``Whether on the facts and in the circumstances of the case, the ITAT was justified in cancelling the order passed by the Assessing Officer imposing penalty under Sec. 273 of the Income Tax Act, 1961 ? (5). The Income Tax Appellate Tribunal vide its order (Annex.4) dated 24.2.1999 rejected the reference application filed by the Department under Sec. 256(1) of the Act stating it to be a question of fact. This appeal has been filed by the appellant State of Rajasthan alongwith an application under Sec. 5 of the Limitation Act for condoning the delay of 19 days in preferring this appeal. This appeal has been filed by the appellant State of Rajasthan alongwith an application under Sec. 5 of the Limitation Act for condoning the delay of 19 days in preferring this appeal. Thus, the Department has preferred this reference application under Sec. 256(2) of the Act. (6). Mr. Sandeep Bhandawat, the learned counsel appearing for the Revenue submits that the Income Tax Appellate Tribunal was not justified in importing the reasons given for not filing the return of income in time to the default under Sec. 273 of the Act. According to the Department, the Books of Accounts were seized on 9.1.1986 whereas the assessee had already filed the statement of advance tax on 9.9.1985. Hence, the reasons, whatever for not filing return of income is not applicable to default under Sec. 273A of the Act. He has, therefore, submitted that this reference application under Sec. 256(2) of the Act deserves to be allowed and the Tribunal may be directed to refer the above question of law for the opinion of this Court. (7). In this case, the return was due to be filed on 31.7.1986. It was filed on 13.4.1988. Thus, it was late by 20 months. The form No.6 was filed on 31.7.1986 requesting for extention of time upto 30.9.1986. The Assessing Officer, thereafter, issued a notice under Sec. 139(2) of the Act which was not complied with in time and the return was, thus, late. There was search in the business premises of the assessee and the books of the accounts relevant to the year under consideration were seized by the Department. The assessee requested inspection of books so as to reconcile various statements and also to get the account books audited. The Assessing Officer allowed the appellant firm an opportunity for inspection of the books. The appellant requested the department to get the books audited on behalf of the firm as per the provisions of Sec. 44AB of the Act. The audit report was to be enclosed with the return but however, on account of delay in permission to get the audit work done by nominated auditor u/S 142(2A) of the Act, the audit of the firm was held up. Ultimately, no permission was granted. The audit report was to be enclosed with the return but however, on account of delay in permission to get the audit work done by nominated auditor u/S 142(2A) of the Act, the audit of the firm was held up. Ultimately, no permission was granted. The Assessing Officer issued a letter dated 22.7.1986 requiring the party to inform the convenience of the Chartered Accountant to go through the Books in the first or second week of September, 1986. The audit of the accounts could be completed only in April, 1988 and the appellant firm furnished the return enclosing the audit report on 13.4.1988. (8). The Income Tax Appellate Tribunal, after examining the above facts and circumstances of the case, was of the opinion that in the given circumstances, the assessee was prevented by reasonable cause which was accepted by the Commissioner of Income Tax(Appeals). The Tribunal has further held that Commissioner of Income Tax(Appeals) was reasonable and justified in allowing the appeal of the assessee and dismissed the appeal filed by the Revenue. (9). The authorised representative appearing for the assessee before the Tribunal submitted that since all the books of accounts were lying with the Department and the assessee was not allowed to inspect the books of accounts within the time for filing the estimates, the assessee cannot be held responsible for the default in terms of the provisions of Sec. 273 of the Act. The assessee filed the estimates on the basis of the last assessed income, which was further revised on estimating the current income. (10). The Department in fact supported the order passed by the Commissioner of Income Tax (Appeals). The Tribunal on a consideration of the rival submissions was of the opinion that having accepted the reasonableness of the cause by which the assessee was prevented to file the return in time i.e. seizure of the books of accounts by the Department in March, 1986 and not providing copy of the books of accounts. The first appellate authority has refused to accept the same circumstances so far as the penalty proceedings under Sec. 273 of the Act are concerned. In this view of the matter, the Tribunal has held that the first appellate authority was not justified in not accepting the above contention made by the learned counsel for the assessee. (11). The first appellate authority has refused to accept the same circumstances so far as the penalty proceedings under Sec. 273 of the Act are concerned. In this view of the matter, the Tribunal has held that the first appellate authority was not justified in not accepting the above contention made by the learned counsel for the assessee. (11). We have perused the order under reference passed by the Income Tax Appellate Tribunal rejecting the application filed by the Department under Sec. 256(1) of the Act for referring the above question for determination to this Court. The Income Tax Appellate Tribunal has held that in regard to the proceedings u/S. 273 of the Act, the assessee furnished advance tax statement on 9.9.1995 and after the search neither it furnished any revised statement nor paid any tax and, therefore, the Assessing Officer imposed penalty under Sec. 273(2)(a) of the Act which was though upheld by the Commissioner of Income Tax (Appeals) but set aside by the Tribunal, after considering the reasonableness by which the assessee was prevented to file the return. (12). Since all the appeals were decided on the basis of the appreciation of facts, in our opinion, no referable question of law arises from the order passed by the Tribunal. Therefore, the Tribunal has rightly dismissed the reference application filed by the Department u/S 256(1) of the Act. (13). This reference application is, therefore, dismissed.