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TMI Blog1969 (9) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... 961 hereinafter called " the Act " made at the instance of the Commissioner of Income-tax. Messrs. Indra and Company, Jodhpur, a registered firm under the Act, and one of its partners, Shri Jiwanlal Maheshwari, had to submit their income-tax returns under section 139(1) of the Act by or before 30th June, 1962. Both of them made applications to the Income-tax Officer, A-Ward, Jodhpur, for extending the time for filing their returns and the time was extended up to August 31, 1962, in both the cases. Again, applications were made for extension of the time and they were granted time up to September 20, 1962, and further extension was granted up to September 30, 1962, but the returns were not filed even on that day. The said Income-tax Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal took the view that as in each case the assessment proceedings had been initiated and completed on the basis of the returns submitted under section 139(2), it was not permissible under law that penalty should be imposed for any default committed in not submitting the returns under section 139(1). On application by the Commissioner of Income-tax, the Tribunal has submitted the following question for the opinion of this court : " Whether the Tribunal rightly held that the orders of penalties in question under section 271(1)(a) of the Income-tax Act, 1961, were not tenable in law ?" In order to appreciate the argument of the Tribunal for taking the view that penalty could not be imposed on the assessees for any default committed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause failed to furnish it within the time allowed and in the manner required by such notice, or . . . . he or it may direct that such person shall pay by way of penalty, in the case referred to in clause (a), in addition to the amount of the income-tax and super-tax, if any, payable by him, a sum not exceeding one and a half times that amount, .... " The Tribunal contrasted the language of section 271(1)(a) of the Act with the language of section 28(1)(a) of the old Act and noticed that the words " as the case may be " were added in clause (a) of sub-section (1) of section 271 of the Act and these words substantially modified the corresponding provisions of section 28(1)(a) of the old Act. The Tribunal proceeded to say that under the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed and in the manner required by notice given under sub-section (2) of section 139 or section 148, The words " as the case may be " have been put because all the four cases have been condensed in one paragraph and these words only mean that whichever the case may be, the person shall be deemed to have committed default for which penalty was to be imposed under section 271(1)(i) of the new Act.' : These words " as the case may be " have their full meaning when we construe section 271(1)(a) in this light. They were not necessary in, section 28(1)(a) of the old Act, for the reason that the words at the end of section 28(1)(a) " by such notice " covered all the defaults mentioned therein, as all the defaults could be committed only when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished after the giving of the notice under section 13 9(2), it must be deemed that the default so far as the furnishing of the return under sub-section (1) of section 139 is concerned, continued for all the time. The default is in not furnishing the return and as soon as the return is furnished, there is end of the default. Moreover, it has been expressly laid down under section 139(7) that no return under sub-section (1) need be furnished by any person for any previous year if he has already furnished the return of income for such year in accordance with the provisions of sub-section (2). In our opinion, in all the cases mentioned in section 271(1)(a) of the Act, the default continues only till the time when the return has been furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unless there is any express order for condonation of such default, we cannot take it that the Income-tax Officer, merely because he has issued a notice under section 139(2) to a person who has not filed the return under section 139(1), must be taken to have condoned his default in not furnishing the return under section 139(1). It is further argued before us that it will be equitable to construe section 271(1) in such a manner that if there is a longer period of default in not furnishing the return as required under sub-section (1) of section 139 and if there is a shorter period of default or no default at all in furnishing the return under sub-section (2) of section 139, then action for imposition of penalty can be taken only for a short ..... X X X X Extracts X X X X X X X X Extracts X X X X
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