CHANDRACHUD J.- This is an appeal by special leave from a judgment of the Gujarat High Court dated March 2, 1972, rejecting an application filed by the appellant, the Additional Commissioner of Income-tax, Ahmedabad, under s. 256(2) of the I.T. Act, 1961, asking that the Income-tax Appellate Tribunal be directed to refer a certain question of law to the High Court.

The Tribunal has set aside the penalty of Rs. 7,500 levied on the assessee by the ITO and confirmed by the IAC, following a judgment of this court in CIT v. Anwar Ali [1970] 76 ITR 696 (SC). We see the plausibility of Mr. Ahuja's submission on behalf of the appellant that the Tribunal appears to have overlooked the amendment made by Act 5 of 1964 to s. 271 of the I.T. Act, 1961. The word " deliberately ", which occurred in the unamended section, was omitted by the amendment and an Explanation was added to that section which was previously not there. These amendments, undoubtedly, ought to have been considered by the Tribunal, but taking an overall view of the matter we are unable to agree that this is a fit case for asking the Tribunal to make a reference to the High Court. We would only like to add that the circumstance that we are dismissing this appeal shall not be construed as our approval of the Tribunal's judgment.

The appeal is accordingly dismissed.