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TMI Blog1978 (9) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituted with effect from 19th October, 1968, on account of the death of one of the partners, namely, Sri I.D. Goswami, who was substituted by his wife in the reconstituted firm, notwithstanding that the fact of reconstitution of the firm was not brought on record by the assessee at any time up to the date of the order imposing penalty?" The assessee filed quarterly returns for the first three quarters for the assessment year 1967-68. It did not file its return for the fourth quarter within time. Time was taken, and a return was filed under the signature of its counsel, Sri Laxmi Narain Gupta, Advocate. In the return, taxable turnover was mentioned at Rs. 1,20,590. During the assessment proceedings, however, the assessee filed a revised return showing its taxable turnover for the fourth quarter at Rs. 10,05,791.43. This return was signed by the assessee. The assessment order was passed on 23rd April, 1970, and the revised return was accepted. Subsequently, a penalty notice under section 15-A(1)(b) was issued to the assessee. The explanation of the assessee was not accepted and a penalty of Rs. 70,000 was imposed. In appeal, the penalty was reduced to Rs. 40,000. Two revisions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his business or partition of a joint Hindu family shall be deemed to be discontinuance of business within the meaning of this section." This provision makes it clear that in the case of a reconstitution of a firm, penalty may be assessed and determined as if no reconstitution had taken place, and every partner is treated as a dealer for purposes of such assessment. Thus, the penalty proceedings were validly taken. Turning to the first question, the penalty has been imposed on the assessee by recourse to section 15-A(1)(b) of the Act. Section 15-A(1)(b) of the Act at the relevant time ran as under: "15-A. Penalty for failure to file returns.-(1) If the assessing authority is satisfied that any dealer- (b) has concealed the particulars of his turnover or deliberately furnished inaccurate particulars, of such turnover; or (c)........................................................ he may direct that such dealer shall pay, by way of penalty.............." In the present case, the penalty has been imposed on the footing that as the dealer in his first return had shown a smaller turnover as compared to the turnover shown in the revised return, which was accepted, he fell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following effect: "3. Name and status (proprietor, partner, director, etc.) of the person submitting the return." Mr. Gulati appearing for the assessee contended that form IV clearly indicates that the return has to be signed by a proprietor or partner of a firm and not by his agent. In this connection he referred form VII-D and form VII-F, which permit the forms to be signed by the authorised agent of the assessee. Form VII-D is a certificate issued under rule 27B for commodities exported out of India. This certificate can be issued either by the exporter or his authorised agent. Form VII-F is a certificate of consumption and permits the certificate to be signed either by the consumer or his authorised agent. It was urged that as form IV does not specifically authorise the authorised agent to sign the return, the return is to be signed by the partner or proprietor of the business. On the other hand, Sri V.D. Singh, the standing counsel, invited my attention to form V and form VII. Form V is the form in which the application for exemption has to be given. This form indicates that the form has to be signed either by the proprietor, partner or director. Form VII is the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uting the firm. In case it was permissible for any other person but the partners to file the return, rule 41(1) should have expressly stated to that effect. Rule 66 and rule 69 respectively dealing with appeals and revisions make clear provisions for the memorandum of appeal and the application for revision being signed by persons other than the assessee. Rule 66(1) runs thus: "66. Contents of memorandum of appeal.-(1) The memorandum of appeal shall specify the name and address of the appellant.............. and shall be signed by the appellant or his lawyer or his duly authorised agent and verified in the form given below: the appellant I,............................ ---------------------do hereby declare on behalf of the appellant that the contents of this memorandum are true to the best of my knowledge and belief." Rule 69(1) is to the following effect: "69. Appearance of parties before the Judge (Revisions) or Additional Judge (Revisions).-(1) An application for revision of any order of the Sales Tax Officer............................. be presented by the applicant, or his duly authorised agent, or lawyer.............................." Thus, while rule 41(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule qui tacit per alium tacit per se, which can be displaced by the express or necessary intendment of the statute. The opening words of rule 77-A "unless otherwise provided in the Act or the Rules............................... bring in this consideration. Section 7, rule 41(1), read along with rules 66 and 69, indicate that the statutory intent was that returns should be filed under the signature of the dealer. In a closely parallel situation, the Supreme Court in the case of Commissioner of Agricultural Income-tax, West Bengal v. Sri Keshab Chandra Mandal[1950] 18 I.T.R. 569 (S.C.). held likewise. The issuance of a cheque by the assessee for the amount of tax due under the first return does not salvage the position, as it could not convert the first return into a return as required by section 7(1) and rule 41(1). The result is that the first return filed by Sri Laxmi Narain Gupta, Advocate, was not a valid return. The answer to the second question is obvious, once the first question has been answered in favour of the assessee. The basis of the penalty under section 15-A(1)(b) is the concealment or inaccuracy detected on a comparison of the first return and second return, an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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