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TMI Blog2001 (11) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the finalisation of accounts of the assessee will take a few weeks more to be completed. The Income-tax Officer allowed that application and granted extension of time till October 31, 1982. On or before October 31, 1982, the assessee did not file its return, nor did it make an application in terms of the proviso to section 139(2) of the Act read with Form No. 6 for further extension of time. But on December 14, 1982, the assessee made yet another application in Form No. 6 seeking time for filing the return till January 30, 1983. Presumably because the application was made after the expiry of the time he had earlier granted and it had not been filed before October 31, 1982, the extended date for filing the return, the Income-tax Officer did not pass any order on that application. The assessee did not file its return even by January 30, 1983, the date up to which it had sought extension of time. The Assessing Officer thereupon called upon the assessee to appear on September 4, 1984. On that day the assessee gave a letter stating that the Assessing Officer had required it to file its return of income and to produce its accounts on September 4, 1984, but since the transactions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for any further extension of time before the expiry of October 31, 1982, and hence the assessee was in default for a period of 24 months after October 31, 1982. The Assessing Officer also found that even in the first application for extension of time it was stated that only a few weeks more were needed for finalisation of accounts and in that situation, the assessee had not given any reasonable explanation or acceptable explanation or reasons for the default in filing the return and hence the Assessing Officer was satisfied that penalty under section 271(1)(a) of the Act was liable to be imposed. Since the default extended to 24 months, the Assessing Officer quantified the rate of penalty at the rate of 2 per cent. of the tax for every month of default. The assessee appealed against the order before the Commissioner of Income-tax (Appeals). By order dated June 24, 1988, the Commissioner of Income-tax (Appeals) reconsidered the relevant aspects and came to the conclusion that the Assessing Officer was justified in holding that there was a delay in filing the return of income from November 1, 1982, to November 29, 1984, and that that delay was without reasonable cause. Hence, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 31, 1982. Under the proviso to section 139(2) of the Act as it stood, there was discretion in the Assessing Officer to grant extension of time for filing the return under section 139(1) of the Act. The said proviso, as it stood at the relevant time, read as follows: "Provided that, on an application made in the prescribed manner, the Assessing Officer may, in his discretion, extend the date for furnishing the return, and, notwithstanding that the date is so extended, interest shall be chargeable in accordance with the provisions of sub-section (8)." There is no dispute that the application made in the prescribed manner is an application in terms of rule 13 of the Income-tax Rules, 1962, and Form No.6. The assesee had made an application in Form No. 6 on July 30,1982, seeking extension of time till October 31, 1982. That application had been allowed by the Assessing Officer. Again, though not before October 31, 1982, on December 14, 1982, the assessee had made yet another application in Form No. 6 seeking extension of time till January 30, 1983. Since the application was not filed before October 31, 1982, the Assessing Officer did not allow that application. Of course, he did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time for filing a return could be exercised by the Assessing Officer at his discretion only on an application made in Form No. 6. When a statute provides that a thing shall be done in a particular manner, it has to be done in that manner or not at all. This is a proposition well accepted. Therefore, if the assessee wanted to make an application for extension of time to file the return he had to comply with the concerned rule and the concerned form prescribed in that behalf and if the Income-tax Officer wanted to exercise his discretion to extend the time for filing the return by the assessee, he had to exercise that discretion only on an application made in the prescribed manner. Further, the letter dated September 4, 1984, is only a reply to the posting of the assessment made by the officer on that day and in fact it could not be treated as an application for extension of time for filing the return especially because the same was filed nearly two years after the last application for extension dated December 14, 1982, under which extension was sought only up to January 30, 1983. In this situation, we have no hesitation in overruling the contention of learned counsel for the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have that effect, it has to be regarded as having the same force as the section of the Act. If section 139(2) is read along with rule 13 and Form No. 6, it becomes clear that an application for extension could be made even after the period allowed originally or as a result of extension of time granted having expired. It is, therefore, clear that even though the assessee made the second application for extension of time only on December 14, 1982, after expiry of the time granted till October 31, 1982, the said application could be treated as an application which could be considered for exercise of discretion in terms of the proviso to section 139(2) of the Act. It has, therefore, to be held that on December 14, 1982, the assessee had made a valid application for extension of time to file his return till January 30, 1983. We have already held that the letter dated September 4, 1984, is not an application for extension of time since it is not an application made in Form No. 6 as prescribed by the proviso to section 139(2) of the Act and rule 13 of the Rules. Hence, it has to be taken that subsequent to January 30, 1983, no application for extension of time for filing the return h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's request for time had been allowed by the Assessing Officer till January 30, 1983, and hence the assessee had time to file the return till January 30, 1983. We have already held that the letter dated September 4, 1984, could not be considered to be an application for extension of time to file the return. The return was admittedly filed only on November 29, 1984. The assessee is hence liable to pay penalty for the period from January 31, 1983, till November 29, 1984, the date on which the return was filed. The Appellate Tribunal has clearly erred in holding that penalty was leviable only for the period of default beginning from October 1, 1984, on the basis of the request contained in the letter dated September 4, 1984. In view of the discussion and our conclusion as above, it must be held that the period of default commences from January 31, 1983, and it continued till the date of filing of the return. Then the question is whether the imposition of penalty for belated filing of the return in terms of section 271(1)(a) of the Act is justified. Learned counsel for the assessee submitted that this was only the failure to fulfil a statutory obligation and the mere fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication filed on December 14, 1982, seeking extension of time till January 30, 1983. Paragraph 4 only referred to the letter dated September 4, 1984, given by the assessee seeking time till September 30, 1984, for the filing of the return. Paragraph 5 only stated that the time applied for was not rejected. In the light of the facts as indicated above, the assessee requested the Assessing Officer to drop the penalty proceedings. Both the Assessing Officer and the Commissioner of Income-tax (Appeals) on these materials properly held that there was no reasonable cause made out for relieving the assessee from the penalty proposed to be imposed under section 271(1)(a) of the Act. Both the assessing authority and the first appellate authority also referred to the reason given by the assessee in its application dated July 24, 1982, and filed on July 30, 1982, to find that there was absolutely no reasonable cause for not filing the return till November 29, 1984. For, in the application filed on July 30, 1982, what was stated was that the finalisation of the accounts will take a few weeks more. Even, if the few weeks more had not expired by October 31, 1982, the date till which time was as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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