TMI Blog1993 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... y, i.e. before 31-5-1989, the day on which the assessee was required to file the return. The assessee, however, filed the return under section 206 on 20-11-1989, i.e. late by 173 days. As the assessee has not shown any reasonable cause for the delay in furnishing the return under section 206, the Assessing Officer levied a penalty of Rs. 17,300 at the rate of Rs. 100 per day of delay. The Commissioner (Appeals) upheld the penalty. 3. Referring to the provisions of section 272A(2)(c) the learned counsel for the assessee, Shri V.H. Patil, submits that the law provides for penalty where an assessee fails to file the return due under section 206 within the prescribed time. This section, according to him, prescribes the time for preparing the return and not for furnishing the same. For furnishing the return, section 206 does not provide any time limit and, therefore, according to him, there could be no default committed by the assessee, which could be penalised. He referred to the provisions of section 206 existing at the relevant time and those which were amended subsequently where under a time for filing is also provided. He further submits that the tax deducted at source was Rs. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty is for the failure of an assessee to furnish in due time any of the returns or statements or particulars mentioned in various sections, one of which with which I am concerned is section 206. To be punishable under this section an assessee should fail to furnish the same in due time. The word "due" has different meaning and that meaning is to be put on it, which fits in with the context. It may mean "payable", "enforceable" or "just and proper" or "required" or "prescribed". When it is used in conjunction with time it means required or prescribed time. A return to be filed "in due time" means within the time limit, within which the law requires it to file. The obligation to file is under section 206. This section, as it stood at the relevant time, reads as under : " 206. The prescribed person in the case of every office of the Government, the principal officer in the case of every company, the prescribed person in the case of every local authority or other public body or association, every private employer and every other person responsible for deducting tax under the foregoing provisions of this Chapter shall prepare, within the prescribed time after the end of each financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form and manner in which any application, claim, return or information may be made or furnished and the fees that may be levied in respect of any application or claim ; (j) the manner in which any document required to be filed under this Act may be verified ; and (p) any other matter which by this Act is to be, or may be, prescribed. " The form or manner and other matter, which by this Act is to be or may be prescribed did not include the issue of limitation and this has been the subject matter of judicial scrutiny. 7. In STO v. K.I. Abraham [1967] 20 STC 367 (SC), section 8(4)(a) of the Central Sales Tax Act, 1956 provided for a declaration to be filed in the prescribed manner, if one opted for the applicability of sub-section (1) thereof. No law of limitation was provided for furnishing the declaration form in section 8 of the 1956 Act. The limitation was provided by the third proviso to Rule 6 of Central Sales Tax (Kerala) Rules, 1957. The Supreme Court observed that the section did not authorise the rule-making authority to prescribe a time limit within which a declaration is to be filed by a registered dealer. There also section 13 of the Sales Tax Act, 1956 authorise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorised with the approval of the President to make rules for regulating generally the practice and procedure of the court, a specific power was given to it by article 145(1)(b) to prescribe limitation for entertaining appeals before it. It is, therefore, apparent, in the opinion of the Court, that the Legislature does not part with the power to prescribe limitation which it jealously retains to itself unless it intends to do so in clear and unambiguous terms or by necessary intendment. The fact that the Legislature under the Income-tax Act has retained this power to itself and has not parted it to the rule-making authority is evident from the various provisions contained in sections 139, 249, 253, 256, the pre-amended and post-amended section 206. Section 206, as it stood at the relevant time, also provides for the limitation but for preparing the return only. Conversely, whenever the Legislature wanted to leave the power to the rule-making authority it specifically gave it as it has done it under section 200 of the Income-tax Act for deducting and payment of tax at source. 9. Similarly, the Madras High Court in the case of P. Thirumurthi Chettiar v. State of Madras [1968] 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of the concessional rate of tax under section 3(3). In a case under the Income-tax Act the Andhra Pradesh High Court in CIT v. Hyderabad Asbestos Cement Products Ltd. [1988] 172 ITR 762 has held in a reference jurisdiction under section 256(1) that the power to specify conditions conferred on the Board by the second limb of section 36(1)(iv) merely touches upon any routine conditions which the Board may stipulate for the observance by the employer and cannot justify imposition of drastic cuts and divisions in the matter of allowing the contribution to the recognised provident fund and superannuation fund by the employer. Condition Nos. 2 and 3 of the Notification No. SO 3433 dated October 21, 1965, as per the court, are in excess of the power conferred on the Board by the second limb of section 36(1)(iv). These conditions, being repugnant, the court held, had to be disregarded and must give way to the substantive provisions of the Act contained in section 36(1)(iv) of the Act..... The Special Bench of the Tribunal in the case of Amar Dye Chem. Ltd. v. ITO [1983] 3 SOT 384 (Bom.) has held that the rule 19A(3) was repugnant to and had the effect of whittling down section 80J a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative has yet another fire-pan. The limit, he submitted, is a procedural matter and the power to put limit has specifically been given to the rule-making authority by the Finance (No. 2) Act, 1991 whereby the law provided that the prescribed person shall within the prescribed time limit after the end of each financial year prepare, deliver or cause to be delivered such return to the prescribed authority. This provision was substituted by Finance (No. 2) Act, 1991 with effect from 27-9-1991 and was specifically made applicable from the date it received the assent of the President. Admittedly the President gave his assent much after 31st of May, 1989, which is the date prescribed by Rule 37 or the filing of the return by the assessee on 20-11-1989 and, therefore, it cannot have retrospective effect. It would be useful here to refer to the Supreme Court decision in the case of Bharat Barrel Drum Mfg. Co. Ltd. It is pointed out at page 866 that where a statute prescribing limitation extinguishes the right, it affects substantial right while that which purely pertains to the commencement of action without touching the right is said to be procedural. Time limit in the present case c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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