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TMI Blog1976 (8) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... 16, 1961, the company requested for time up to October 31, 1961. By another letter dated November 1, 1961, it again asked for time till December 31, 1961. The Income-tax Officer granted time only up to November 30, 1961, and this was intimated to the company through an intimation card on November 3, 1961. As the return was not forthcoming, the company was reminded by an intimation sent on December 11, 1961. However, by a letter dated December 22, 1961, the company asked for further time till January 15, 1962, to file the return of income. Even by January 15, 1962, the company did not file its return. The Income-tax Officer on January 22, 1962, passed an order on the order-sheet directing to wait till January 31, 1962, and issue penalty notice. On February 2, 1962, notice under section 28(3), of the Indian Income-tax Act, 1922, was issued to the company to show cause why a penalty should not be imposed under section 28(1)(a) of the same Act. The notice was to be discharged on February 15, 1962, and the assessee filed a return on that date. It is thereafter the Income-tax Officer passed an order on March 4, 1968, imposing a penalty of Rs. 8,639 under section 271(1)(a) of the Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuary 15, 1962. But such a contention on the part of the department is not open in view of the clear finding of the Tribunal that the Income-tax Officer has given time to the assessee to file the return of income till January 15, 1962, and in view of the fact that the department has not asked for a reference questioning the correctness of this finding. Therefore, we have to proceed on the basis that the assessee had time to file the return till January 15, 1962, but actually filed the return on February 15, 1962. The question in that context that arises for consideration is whether the assessee is liable to penalty in terms of section 271(1)(a) referred to already. There can be no dispute that the said provision contemplates the levy of penalty at a particular percentage of the tax per month of default. Therefore, we have to find in this particular case whether there is a month's default at all. The learned counsel for the department contended that the word " month " means a period of 30 days and, in this case, such a period of 30 days of default has occurred and, consequently, the assessee was liable to penalty even on the basis of the finding of the Tribunal. As against this, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a period terminating with the day of the succeeding month numerically corresponding to the day of its beginning, less one. If there be no corresponding day of the succeeding month, it terminates with the last day thereof. " According to the Shorter Oxford English Dictionary, third edition, " month " means : " A space of time, either (a) extending from any day to the corresponding day of the next calendar month (called 'a calendar month') or (b) containing 28 days (often) miscalled a 'lunar month'). " One of the earlier decisions which happened to consider the meaning of the word " month " is the decision of the Full Bench of the Calcutta High Court in South British Fire and Marine Insurance Co. v. Brojo Nath Shaha [1909] ILR 36 Cal 516, 535, 536 [FB]. That was concerned with the meaning to be attributed to the word " month " occurring in an insurance policy. The question for consideration was whether the word " month " was to be understood as a lunar month or it was to be understood in any other sense. Chief Justice Maclean stated : " The ordinary meaning of the word 'month' in the English language is a lunar month and not the artificial month in the Gregorian calenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any kind of 'monthly tenancy' and it is well-known that a monthly tenancy may be according to an English calendar, Bengali calendar, Samvat calendar and so forth, and may commence on any day of the particular month, say, from the 5th of one to the 4th of next and so on. " In Marakanda Sahu v. Lal Sadananda Singh AIR 1952 Orissa 279 a Division Bench of the Orissa High Court had applied this definition of " month " contained in the General Clauses Act to the word " month " occuring in decrees and orders of courts. The Rajasthan High Court had occasion to consider the same expression in section 106 of the Transfer of Property Act in its judgment in Banarsilal v. Shri Bhagwan AIR 1955 Raj 167. In that judgment, the Rajasthan High Court followed the view expressed by the Calcutta High Court in Ahumad Ali Biswas v. Jyotsna Kumar Bandopadhyay AIR 1952 Cal 19, referred to already. A Bench of the Allahabad High Court in Abdul Latif Nomani v. Commissioner, Gorakhpur AIR 1968 All 44 had occasion to consider the use of the word " month ", occurring in section 40(1)(a) of the U.P. Municipalities Act. Section 4(28) of the U.P. General Clauses Act had defined the word " month " in identical t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruments before 1926, the word " month " was understood as a lunar month. In statutes after 1850, the word " month " meant calendar month and similarly in instruments after 1925, the word " month " meant calendar month. Paragraph 143 gives the meaning of the word " calendar month " : " When the period prescribed is a calendar month running from any arbitrary date the period expires with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts ; save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of the latter month. " As far as the present case is concerned, as we have pointed out already, the default commenced on January 15, 1962. Consequently, one month of default would have been completed on February 15, 1962. But, on February 15, 1962, itself, the assessee has filed the return. Consequently, the default had not lasted for a month as provided for in section 271(1)(a) of the Income-tax Act, read with section 3(35) of the General Clauses Act, 1897, so as to attract the liability to penalty. The learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the language of the sub-section, for the sub-section in clear and unambiguous terms makes every assessee liable for penalty during the period of default. In the circumstances, it is not appropriate to import the meaning of the word 'month' given in the General Clauses Act in the sub-section, for it does not fit in with the context and scheme of the section, and results in some cases in setting at naught the purpose of the enactment. " With respect, we are unable to share the above view. In the first place, the learned judges have failed to take note of the difference in the meaning attributable to the word " month " even in England, depending upon whether the word occurs in a deed or in a statute. As we pointed out already, till 1850, the word " month " in a statute in England meant only a lunar month and after 1850, the word " month " meant a calendar month, while the same word in a deed meant lunar month till 1925 and only thereafter a calendar month. Consequently, it is not correct to rely upon decisions construing the word " month " occurring in deeds for the purpose of construing the word " month " occurring in statutes. As a matter of fact, the very decision of the Calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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