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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 ..... ns 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 then served notices on the assessees under section 139(2) of the Act calling upon them to file returns within thirty days and the returns were then filed on April 25, 1963. During the course of assessment proceedings, the Income-tax Officer issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted 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 in furnishing the returns as required under section 139(1), it is necessary to set out the following relevant portions of section 271(1)(a) of the Act and section 28 of the Indian Income-tax Act, 1922 : " 271. (1) If the Income-tax Officer or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-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 Act minimum penalty is provided and that minimum penalty is to be calculated for every month during which default continued and this calculation is possible only when the limits of time during which the default continued can be determined. The Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appropriate notices as required in section 22(1) or section 22(2) or section 34 of the old Act had been given. The words " by such notice " meant a notice as may have been given either under section 22(1) or section 22(2) or section 34. Because th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 or if no return has been furnished at all, it continues till the assessment is completed. But, if the return has been furnished, the default ceases whether such return is furnished under sub-section (1) of section 139 or by notice given under subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 shorter period of default. This argument has got no merit because the law makes one default as much liable for penalty as another and it is for the Income-tax Officer to take action for whatever default he thinks proper by issuing a notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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