IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.675 OF 2008 CIT, Central-II, Mumbai )..Appellant V/s. M/s.Growmore Research & Asset )..Respondents Management Ltd., Mumbai ---- Mr.P.S.Sahadevan for the appellant. Mr.Atul K.Jasani for the respondents. ---- Coram : F.I.Rebello & R.S.Mohite,JJ Date : 10.2.2009. PC 1. Admit on the following question :- (A) In the facts and circumstances of the case whether the Tribunal was correct in law in deleting the penalty of Rs.11,20,17,982/- levied on the ground that no penalty under section 271(1)(c) can be levied when Return of Income is not furnished ? 2. The Tribunal has passed a common order dated 17.12.2007. On facts here, no return was filed and accordingly penalty was imposed. It will be also noted that considering the provisions of the Special Court (Trial of Offences Relating to Transaction in Securities) Act, 1992 a Custodian had been appointed for all the assessees. For the purpose of considering the issue, what is relevant are the : 2 : provisions of section 271(1)(c) which reads as under :- . "(1) If the Assessing Officer or the Commissioner (Appeals) or the Commissioner in the course of any proceedings under this Act is satisfied that any person- (a).......... (b).......... (c) has concealed the particularsof his income or furnished inaccurate particulars of such fringe benefits, he may direct that such person shall pay by way of penalty........" . Explanation (3) to section 271 reads as under :- . "Where any person who has not previously been assessed under this Act fails, without reasonable cause to furnish within the period specified in sub section (1) of section 153 a return of his income which he is required to furnished under section 139 in respect of any assessment year commencing on or after the 1st day of April, 1989, and until the expiry of the period aforesaid, no notice has been issued to him under clause (i)......................" . By Finance Act, 2002 with effect from 1.4.2003, the words "who has not previously been assessed under this Act" were omitted. . We are concerned with the Assessmet year 1997-98. In other words, what we have to see is the provision as it then stood previous to its amendment. . It would thus be clear that before 1.4.2003 penalty could have been imposed only in respect of assessees who had not been previously assessed. In the instant case, admittedly, the assessee had been assessed for previous assessment years. Once that : 3 : be the case, no penalty could have been imposed. 3. We are therefore, in the agreement with the view taken by the Tribunal. Considering the above, question (A) is answered in the affirmative, in favour of the assessee and against the revenue. 4. Appeal disposed off accordingly. (R.S.Mohite,J) (F.I.Rebello,J)