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12. Now, let us examine the position by reference to the Explanation added to Section 271. Now, a revised return validly filed under Section 139(5), which supplants the original return, has got to be taken into consideration for the purposes of ascertaining whether failure to return the correct income arose from any fraud or wilful neglect on the part of the assessee. In such cases, the question whether the assessed income is more than 80% of the returned income, has got to be adjudged with reference to the revised return and the question of fraud or gross or wilful neglect has also got to be adjudged with reference to that return, and not the earlier return. To hold otherwise would be rendering the provisions of Section 139(5) redundant, for we cannot hold at one stage that a revised return is as good as any other return under Section 139, and for purposes of penalty take the view that a revised return validly filed is meaningless and has no relevance for the purposes of adjudging the penalty. The cases which were referred to earlier, where the view has been taken that it is the first return that has got to be taken into account, are all cases where there was deliberate concealment of income by the assessee. In such cases, on the view that we take, no revised return could at all have been filed by the concerned assessee, as the requirement of Section 22(3) of the old Act for filing a revised return could not be complied with on account of concealment, and the question of taking into account the revised return does not arise.

13. Keeping these principles in view, let us now examine the present case. In the present case, there is a clear finding that there was concealment by the assessee. This being so, the assessee could not have validly filed a revised return, and as such the question of fixing the rate of penalty with reference to the revised return did not arise at all as the revised return filed by him was not a return contemplated by Section 139(5) and as such could not be taken into account.

14. We, accordingly, answer the question referred by saying that the penalty which was to be levied has to be determined by reference to the tax which would have been avoided if the first return filed by the assessee had been accepted. As the reference has been answered against the assessee, the department is entitled to its costs which is assessed at Rs. 200. Counsel's fee is assessed at the same figure.