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TMI Blog1994 (10) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to refer the following two questions to us : "1. Whether, on the facts and in the circumstances of the case, the levy of penalty under section 9 of the Companies (Profits) Surtax Act, 1964, is valid and within jurisdiction? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in cancelling the penalty on the ground that the same is 'not at all warranted' and the officer is 'not at all competent' to invoke section 9 for imposing the penalty?" The assessee had to file the return of chargeable profits as per the Companies (Profits) Surtax Act, 1964, for the assessment year 1967-68 on or before September 30, 1967. The assessee, however, filed its return on January 31, 1979. On the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Companies (Profits) Surtax Act, 1964, every company whose chargeable profits assessable under this Act exceeded during the previous year the amount of statutory deduction, is required to file a return of the chargeable profits during the previous year in the prescribed form before September 30 of the assessment year provided that on an application made in this behalf, the Assessing Officer may in his discretion, extend the date for the furnishing of the return. Section 5(3) is as follows : "Any assessee who has not furnished a return during the time allowed under sub-section (1) or sub-section (2), or having furnished a return under sub-section (1) or sub-section (2) discovers any omission or wrong statement therein, may furnish a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In other words, there is no provision in section 9 for levying a penalty only for a late filing of the return, even though the return may be filed before the assessment is made. The provisions of section 9 would not be attracted in a case where the assessee had in fact filed the return before the assessment is made and the assessment has been made on the basis of the return filed by the assessee. Looked at slightly differently, since under section 5(3), a return can be filed by an assessee before the assessment is made, it cannot be said in the case of an assessee who has filed the return before the assessment is made, that he has failed to furnish the return as required under section 5. The assessee, in the present case, having furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Act in this connection in contradistinction to the provisions of section 10 of the Super Profits Tax Act. The same reasoning would apply to the present case also. The Allahabad High Court has taken a similar view in the case of CIT v. Anchor Pressing (P.) Ltd. [1982] 136 ITR 505. The Allahabad High Court has interpreted the provisions of section 9 of the Companies (Profits) Surtax Act and has held that in section 9 levy of penalty has been provided only for failure to furnish a return without reasonable cause as required under section 5. If a return is filed under sub-section (3) of section 5 before the assessment is made, there will be no default and hence the Income-tax Officer is not entitled to impose any penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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