TMI Blog1976 (5) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of the assessee-company was deriving income from its share in lease money paid by the lessors of the S. B. Sugar Mills, Bijnor, and from dealings in groundnut and seeds. The Income-tax Officer issued notice under section 139(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), which was served on the assessee on June 24, 1963, requiring it to file its return of income by 23rd July, 1963. The firm filed its return after a delay of 17 months on 28th December, 1964. Penalty proceedings were initiated and show-cause notice was served on the assessee on 25th March, 1968. The assessee did not appear. The case was adjourned to 3rd January, 1970, but the assessee did not appear even on this date. The Income-tax Officer, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) Any person who has not furnished a return within the time allowed to him under sub-section (1) or sub-section (2) may, before the assessment is made, furnish the return for any previous year at anytime before the end of the period specified in clause (b), and the provisions of sub-section (8) shall apply in every such case." Section 139 deals with the procedure for assessment and it requires an assessee to furnish a return of his income in the prescribed form and in the manner prescribed within the time provided. The proviso to section 139(1) confers a discretion on the Income-tax Officer to extend the date for furnishing return. Section 139(4) permits an assessee to furnish the return as contemplated by section 139(1) or (2) before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the provisions of section 271(1)(a) are not applicable in this case as the return had been filed under section 139(4). According to him, the first part of section 271(1)(a) will not apply as it is not a case where no return was furnished. So far the second part is concerned, i.e., the late filing of the return, the penalty is imposable only if it was not in the manner required by sub-section (1) of section 139. Section 271(1)(a) lays down the point at which the default occurs. In the first part it occurs where the assessee fails to furnish the return of total income which he was required to furnish under sub-section (1) or does not comply with the notice given under sub-section (2) of section 139 or section 148. The second part appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn as contemplated under section 22 and within time. The controversy that has arisen in the present case is whether section 271(1)(a) is applicable where a return has been filed under section 139(4). To our minds it is not the applicability of section 139(4) which is material. The penalty is imposed for not complying with the provisions of section 139(1) and not for filing the return within the time allowed. It has nothing to do with section 139(4). Once the assessee is in default, section 271(1)(a) applies. Similar view has been taken by a Bench of the Andhra Pradesh High Court in a decision in Poorna Biscuit Factory v. Commissioner of Income-tax [1975] 99 ITR 41. Reliance has also been placed on the latest decision in Additional Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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