TMI Blog1995 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 139(2) were issued to the firm and its three partners requiring them to furnish returns of their income within 30 days from the date of service of the notice. The notice was served upon the firm on May 18, 1966, and the partners were served on June 24, 1966. Therefore, the return was required to be filed by the firm on or before June 19, 1966, and the partners had to file their returns on or before July 24, 1966. All of them submitted their returns on June 27, 1967. At the time of completing the assessments, the Income-tax Officer initiated proceedings under section 271(1)(a) for levying penalty as there was delay in filing the returns without reasonable cause. In those proceedings, the assessees pointed out that they had made applications to the Income-tax Officer on June 29, 1966, and December 31, 1966, for extending the time up to December 31, 1966, and March 31, 1967, respectively, and contended that no penalty should be imposed upon them as they reasonably believed that those applications were granted since they were not rejected by the Income-tax Officer. The Income-tax Officer did not accept this contention as in his view no authentic evidence was produced by the assessees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations filed by the assessees were invalid. Section 139(2), which was deleted with effect from April 1, 1989, at the relevant time read as under : "(2) In the case of any person who, in the Income-tax Officer's opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income-tax Officer may, before the end of the relevant assessment year, serve a notice upon him requiring him to furnish, within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Provided that, on an application made in the prescribed manner, the Income-tax Officer may, in his discretion, extend the date for the furnishing of the return, and when the date for furnishing the return, whether fixed originally or on extension, falls beyond the 30th day of September or, as the case may be, the 31st day of December of the assessment year, the provisions of sub-clause (iii) of the proviso to sub-section (1) shall apply." It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st payable. Moreover, a person who failed to furnish the return within the time allowed under section 139(2) was at the relevant time not only liable to pay interest but also penalty under section 271 and fine under section 276. In this context, the question whether a belated application could be regarded as valid or not hag to be considered. As rightly pointed out by the Punjab and Haryana High Court while deciding these cases under section 256(2) and by the Calcutta High Court in Sundardas Thackersay and Bros. [1982] 137 ITR 646, there are no words of limitation in section 139(2) to the effect that no application could be filed after the period allowed had expired. As we have stated earlier, it was a procedural provision. The limit of thirty days was not intended to be final as discretion was given to the Income-tax Officer to extend that date. The Income-tax Officer could have been called upon to exercise that discretion for proper reasons. No fetters were placed upon the discretion of the Income-tax Officer as regards the number of times he could extend the date or the period for which he could extend it. It is conceded that repeated applications could be made within the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om outside in spite of his best efforts, or for other good reasons, as the case may be, he was not able to file the return within time. This court while dealing with the power of the court under section 148 observed as under in the case of Mahanth Rain Das v. Ganga Das, AIR 1961 SC 882 (headnote) : "The procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed." This court further observed that section 148 clothes the court with ample power to do justice to a litigant if sufficient cause is made out for extension and that an order extending time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired. Learned counsel for the Revenue strongly relied upon the decision of the Andhra Pradesh High Court in T. Venkata Krishnaiah and Co. v. CIT [1974] 93 ITR 297, wherein it has been held that it is not open to the assessee to file an application beyond the period within which he was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its discretion as deemed proper and just depending upon the facts and circumstances of each case. Whether a particular thing could be done or not in the absence of a specific provision to that effect would depend upon the object of that provision and other relevant factors like the consequences which may follow if it is held that it cannot be done. From a mere absence of a specific provision authorising the Income-tax Officer to entertain an application made beyond time it was not proper to hold that it was not open to the assessee to make an application under section 139(2) for extension of time after the time allowed had expired and that such an application could not be entertained by the Income-tax Officer. If an application could be made even after the time allowed had expired, it became the duty of the Income-tax Officer either to grant it or reject it. Once the assessee called upon the Income-tax Officer to exercise his discretion it was not open to him to ignore that request and not to pass any order thereon. In our opinion, the Andhra Pradesh High Court did not correctly interpret the proviso to section 139(2). The Patna High Court in CIT v. S. P. Viz Construction Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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