TMI Blog1985 (5) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... layed filing of the return without reasonable cause. It was contended on behalf of the assessee before the Income-tax Officer that when interest had been charged for late filing of the return, penalty should not be imposed. It was also argued on behalf of the assessee that since the Department has charged interest, it might be presumed that the time was extended for filing the return and consequently no penalty proceedings would lie. It was further submitted that if at all the default was to be considered, it would be up to the date of issue of notice under section 139(2) of the Act. It was also submitted before the Income-tax Officer that no tax was due from the assessee (luring the assessment year in question as a substantial amount was due to it as refund for the earlier years and as such the proceeding under section 271(1)(a) was not maintainable. The Income-tax Officer held that no application was made by the assessee asking for extension of time for filing his return and the assessee bad not been able to show that he was prevented by sufficient cause from filing the return. The Income-tax Officer, therefore, imposed a penalty of Rs. 6,264 from the due date of filing the retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no reasonable cause for the delay in the filing of the return. The Tribunal agreed with the finding of the Appellate Assistant Commissioner. The Tribunal also considered the plea of the assessee that the tax should be calculated on the basis that the firm was a registered firm. The Tribunal held that if there is delay in filing the return without any reasonable cause, then the provisions of section 271 (1)(a) of the Act are attracted and the quantum of penalty has to be decided by looking into the provisions of law which clearly require that in the case of a registered firm, the calculation has to be on the basis that the firm is an unregistered firm and so this contention of the assessee was also rejected. The Tribunal, therefore, dismissed the appeal of the assessee. A copy of the order of the Tribunal has been annexed and marked is annexure forming part of the statement of the case. The facts are thus not disputed. For the assessment year 1967-68, the return was due on June 30, 1967, but a general extension was allowed for the assessment year up to August 15, 1967, and so the default under section 139(1) started on August 16, 1967, but the return was filed on Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139 and so they held that the various decisions quoted on page 439 cannot be invoked in the instant case as they were cases dealing with a return tiled in the circumstances mentioned in sub-section (4) section 139. Thus, their Lordships of the Supreme Court have made a distinction that in cases in which the return is filed under section 139(4) of the Act, the presumption cannot be drawn. In the present case, it is the consistent finding of the courts below that the assessee never filed any application for extension of time. Thus, the question which has to be considered is as to whether penalty under section 271(1)(a) of the Act can be levied if interest is charged. There are various decisions to the effect that if a delayed return is filed under section 139(4), then interest can be charged and the charging of the interest will not prevent the Department from levying penalty. In this connection, it has been held in the case of Express Newspapers (P.). Ltd. v. ITO [1973] 88 ITR 255, by the Madras High Court that when the statute provides a time-limit for filing a return, it can also provide penalty for non-submission of the return in time and in addition the statute can also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibit the levy of penalty and that penalty can be levied even if the return is filed before the assessment is made but after the prescribed time. It has also been held in the case of D. B. Navalgundkar Co. v. CIT [1975] 98 ITR 675, by the Karnataka High Court that there is nothing in the Act to indicate that section 139 of the Act prescribing the interest to be charged, and section 271(1)(a) prescribing the penalty to be levied for delay in submission of a return are alternative and not cumulative and, therefore, it is competent on the part of the Income-tax Officer to levy penalty under section 271 (1)(a) of the Act even where the interest his been charged under section 139 of the Act. It has been held in the case of Kerala Tile and Clay Works v. CIT [1976] 104 ITR 597, by the Kerala High Court that for failure to file a return in time as required in section 139(1), penalty can be imposed as well as penal interest and that what is levied under section 271(1)(a) is penalty for the default and attempted evasion of tax and that it is a punishment for the failure of the assessee to comply with the statutory duty imposed by section 139(1) of the Act and it is deterrent in charact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn. The Full Bench of this court, in the case of Jamunadas Mannalal v. CIT [1985] 152 ITR 261, held that when a return is filed under section 139(4), then interest can be charged and so question No. 1 was not pressed by the learned advocate for the assessee, Mr. K. N. Jain, before us and he submitted that question No. 1 should be referred by the Tribunal and, accordingly, the, question was answered against the assessee and in favour of the Revenue. Their Lordships of the Supreme Court have clearly laid down that the cases covered by section 139(4) were not dealt with in CIT v. Chandra Sekhar [1985] 151 ITR 433, as is mentioned at page 439 thereof. In view of my discussions above, I hold that the Tribunal was justified in holding that penalty under section 271(1)(a) of the Act can be imposed even after charging interest under section 139 of the Act for the delayed submission of the return. Question No. 2 is whether on the facts of the case, penalty calculated could be levied in this case when no tax was payable by it as a registered firm. The statement of facts at page 7 of the paper book go to show that the assessee paid advance tax of Rs. 1,750 on October 5, 1966, and anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
