9911796707
TMI Blog1986 (1) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order had not been passed by the Income-tax Officer and, in the meantime, the petitioner filed a return of his income on March 31, 1971, declaring Rs. 1,30,070.34 as income. The Income-tax Officer, Simla, vide his order dated January 31, 1972, assessed the income of the petitioner at Rs. 1,47,570 (annexure " A "). The petitioner filed an appeal with the Appellate Assistant Commissioner of Income-tax, Ambala Range, who allowed the petitioner's appeal in part by starting a relief of Rs. 14,827. The assessable income thus remained at Rs. 1,32,743. A further appeal was preferred by the petitioner to the Income-tax Appellate Tribunal, Chandigarh Bench, but vide order dated December 10, 1974, this appeal was dismissed (annexure " C "). In the assessment order dated January 31, 1972, the Income-tax Officer had charged interest under section 139(8) of the Act. The petitioner contended before the appellate authorities that the interest under section 139(8) of the Act was not chargeable, but this contention of the petitioner was not accepted by the appellate authorities who took the view that they lacked jurisdiction to adjudicate upon the question of levy of interest and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tending beyond the 30th day of September of the assessment year without charging any interest ; (ii) in the case of any person whose total income includes any income from business or profession, the previous year in respect of which expired after the 31st day of December of the year immediately preceding the assessment year, up to the 31st day of December of the assessment year without charging any interest; and (iii) up to any period falling beyond the dates mentioned in clauses (i) and (ii), in which case, interest at nine per cent. per annum shall be payable from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the date of the furnishing of the return (a) in the case of a registered firm or an unregistered firm which has been assessed under clause (b) of section 183, on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm ; and (b) in any other case, on the amount of tax payable on the total income reduced by the advance tax, if any, paid or by any tax deducted at source, as the case may be. (1A) Where as a result of an order under section 154 or section 155 or section 250 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to in clause (a) shall be (i) where the return relates to a previous year relevant to any assessment year commencing on or before the 1st day of April, 1967, four years from the end of such assessment year ; (ii) where the return relates to a previous year relevant to the assessment year commencing on the 1st day of April, 1968, three years from the end of the assessment year; (iii) where the return relates to a previous year relevant to any other assessment year, two years from the end of such assessment year. (5) If any person having furnished a return under sub-section (1) or sub-section (2), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the assessment is made. (6) The prescribed form of the return referred to in sub-sections (1), (2) and (3) shall, in the case of an assessee engaged in business or profession, require him to furnish particulars of the location and style of the principal place where he carries on the business or profession and all the branches thereof, the names and addresses of his partners, if any, in such business or profession and if he is a member of an association or body of indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had suppressed material facts and had not disclosed that an application for extension of time was filed which was rejected. The further contention was that the petitioner could not invoke the writ jurisdiction and the proper remedy was to file an application under section 256 of the Act. It was also contended that in view of the provisions of section 139(1)(iii) read with section 139(4)(a) and section 139(8) of the Act, as applicable for the assessment year 1968-69, the petitioner was liable to pay interest. We have considered the contentions of the learned counsel for the parties and have perused the records. Regarding maintainability of the writ petition, we are of the view that in the facts and circumstances of the present case, when the appellate income-tax authorities have held that they had no jurisdiction to entertain the appeal for the reason that no appeal was provided on the quantum of levying interest, the petitioner can definitely invoke the writ jurisdiction of this court for claiming an appropriate relief, if lie is otherwise entitled to the same. The question of the applicability of section 256 of the Act cannot apply in these circumstances. Hence, it is hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, was filed on December 1, 1964. The Income-tax Officer ordered the assessee-firm to pay interest in accordance with clause (iii) of the proviso to section 139(1) and also imposed penalty under section 271(1)(a) of the Act. The assessee challenged the order regarding imposition of the penalty and levy of interest under clause (iii) of the proviso to section 139(1). After interpreting section 139(4), a Division Bench of the Madhya Pradesh High Court held that even in the case of a return filed within the time allowed under section 139(4), the provisions of clause (iii) of the proviso to sub-section (2) thereof apply, that is, the interest was recoverable in accordance with the provisions of clause (iii) of the proviso to sub-section (1) in all such cases. A Division Bench of the Mysore High Court in Indian Telephone Industries Co-operative Society Ltd. v. ITO [1972] 86 ITR 566 (Mys) also held that clause (iii) of the proviso to sub-section (1) of section 139 of the Act applies not only where the assessee requests for extension of time for furnishing his return of income but also where the date fixed originally under section 139(2) falls beyond the date specified in the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the proviso to section 139(1)(b) was only applicable when an assessee requests for time under the third clause. But if no such request was made, then the third clause had no application. The provisions of section 139(4) of the Act were not referred to or adjudicated upon in this judgment which is distinguishable. In Bahri Brothers (P.) Ltd.'s case [1976] 102 ITR 443 (Pat), it has been held that if no return is filed within the time specified in the notice under section 139(2) of the Act, but the same is filed later on and no extension of time had been applied for, the assessee is not liable to pay interest under clause (iii) of the proviso to section 139(1). The contention of the assessee in this judgment was that the return was filed under section 139(4) of the Act but this contention was repelled on the facts and it was held that the return was filed under section 139(2) of the Act. This judgment nowhere holds that in the case of a return filed under section 139(4) of the Act, no interest is chargeable and, therefore, this judgment cannot help the petitioner. In Mulakh Raj Bimalkumar's case [1977] 107 ITR 382 (J K), the provisions of section 139(4) have again not been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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