TMI Blog1985 (12) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... the return was filed on October 1, 1971. Although the application bears the date September 30, 1971, the finding is that it had been filed on October 1, 1971. A return for the relevant assessment year was filed on May 31, 1972, showing an income of Rs. 80,000 by estimate. It appears that it was realised by the assessee himself that the return filed by him was defective for various reasons. A revised return was, therefore, filed on March 17, 1973, showing the total income of Rs. 1,03,470. The returns having been filed beyond the due date, a penalty proceeding in terms of section 271(1)(a) was initiated. The Income-tax Officer held that the return filed on May 31, 1972, was no return as it lacked the necessary particulars. He, therefore, levied penalty for 17 months' delay in filing the return. A sum of Rs. 28,626, being 2% of the tax of Rs. 84,194, was imposed. The firm was treated as an unregistered firm. On appeal, the Appellate Assistant Commissioner considered the plea of the assessee for not filing the return within time. In that behalf, he examined the reasonableness for the delay in filing the return. The Appellate Assistant Commissioner applied himself to the pleas advanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed on May 31, 1972, was a valid return although it was not accompanied by the statements of accounts supporting the income shown in the return ? The return filed on May 31, 1972, has not been produced before us. We have, therefore, to decide this question on the basis of the facts recorded by the Income-tax Officer and the Appellate Assistant Commissioner. The Appellate Assistant Commissioner has noted that no statement of accounts had been filed along with the return. He has observed as follows: "The original return filed by the appellant on May 31, 1972, is bald and there is no basis to show how the income was estimated. " It thus appears that all that was mentioned in the return was that the assessee had a taxable income of Rs. 80,000 during the assessment year. The question as to whether the return is valid or invalid and not capable of being taken any notice of has been the subject-matter of several decisions. The conspectus of the decisions shows that it will depend upon the circumstances of each case. Every error or omission will not render a return an invalid return. Rule 12 of the Income-tax Rules, 1962, provides the form and the manner in which the return has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired in the Form were only instructions to the assessee as to how the Form should be filled up. In those circumstances, the Full Bench observed as follows (p. 108): " I am clearly of opinion that the particulars prescribed by the form are laid down in the Act itself: Section 22(2). Statutory rule 19 embodies the form of return (exhibit A) furnished to the respondent. This rule has the same force as a section in the Act and a return which completely ignores its provisions cannot, in my opinion, be considered as any return. " We are in respectful agreement with the Full Bench decision of the Rangoon High Court. A similar view was taken by a Division Bench of the Lahore High Court in the case of Lal Mohammad Sardar Mohammad v. CIT [1934] 2 ITR 358. Form No. 2 has been prescribed by rule 12 of the Income-tax Rules. It must, therefore, be treated as a statutory form. The requirement in the form, therefore, must be held to be a statutory requirement. A situation may arise where there may be clerical omissions. Those omissions may be rectified later on. The law has taken note of situations where there may be genuine omissions. In that situation, the assessee should not be penalise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r extension of time filed on October 1, 1971, could be considered in deciding the question of reasonableness for the delay in filing the return. The Tribunal has not found that the application for extension of time had been filed on September 30, 1971. In fact, all the authorities proceeded on the footing that the application had been filed on October 1, 1971. That must be treated as closed chapter being a finding of fact. The question is whether there was any obligation upon the Income-tax Officer to pass any order upon an application for extension of time filed after the due date for filing of the return. The application bore the date September 30,1971, but there is no controversy that it was received in the Department on October 1, 1971. The application does not show that it was filed before the Income-tax Officer. In fact, the Income-tax Officer has noted in his order that from the records it did not appear whether any such application was filed by the assessee. Be that as it may, assuming that the application was filed on October 1, 1971, it was only the case of the assessee that it had been filed on September 30, 1971, and we have to consider whether the assessee could have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reon. We are in respectful agreement with the view of the Andhra Pradesh High Court. It was open to the Tribunal to have looked into the cause shown by the assessee and found that, as a matter of fact, the ground advanced for delay in filing the return was reasonable or not, but it did not do so. Merely, on the application for extension of time, the Tribunal could not have assumed that the assessee would be labouring under the impression that the time had been extended and that circumstance would be reasonable cause for not filing the return within the stipulated period. In that view of the matter, we are of the view that in the facts and circumstances of the case, the Tribunal was not justified in holding that the application for extension of time, received in the office of the Income-tax Officer on October 1, 1971, could be considered as relevant material in deciding the question of reasonableness for delay in filing of the return. As a sequel to our decision on the two points referred to us, the order of the Income-tax Officer is restored. For the reasons stated above, both the questions are answered in favour of the Revenue and against the assessee. However, there shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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