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TMI Blog1975 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Officer ? We have to state briefly the facts leading to this reference in order to appreciate the context in which these two questions of law have arisen and been referred to us. A notice under section 139(2) of the Income-tax Act, 1961 (hereinafter called " the Act "), dated May 25, 1963, had been served on the assessee-company on May 29, 1963, in respect of the assessment year 1963-64. The assessee did not, however, file any return, in spite of the said notice, whereupon the Income-tax Officer took action under section 271(1)(a) of the Act. The notice under section 274 of the Act had been served on the assessee fixing April 27, 1964, for hearing. On April 25, 1964, the assessee submitted an application for extension of the date for furnishing its return up to April 30, 1964, on grounds stated in its letter dated April 24,1964. This application for extension of time was made in accordance with Form 6, as prescribed under rule 13 of the Income-tax Rules, 1962. The Income-tax Officer in his assessment order dated April 7, 1964, after taking note of this application, observed that it was made long after the due date for submission of return by the assessee and also held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 19 , before,.........19..........For the reasons given below, it is not possible --------------------------------------- for me/us to file the return before the said date. it has not been possible 2. It, is therefore, requested that the time for furnishing the return may be extended up to....... Signature......................... Date................19 Name (in capital letters)... Address............................. Notes : 1. Delete the inappropriate words. 2. The application should be signed by a person who is entitled to sign a return of income as provided in sec. 140 of the Income-tax Act, 1961." It will be seen in the above Form that the words " is not possible/has not been possible for me/us to file a return " have been used alternatively. The assessee submits that the use of the phrase " has not been possible " would show that an application for extension of time is permissible, even after the due time for submission of return has expired, provided it is made before the actual assessment. On the other hand, the learned counsel for the revenue points out that the form starts with the words " I/we have to file a return ", which would show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer, being a statutory one, must be exercised fairly, reasonably and objectively but not arbitrarily or with malice or caprice. There is no provision in the Act or the rules made thereunder which requires the Income-tax Officer to pass an order on an application filed by an assessee subsequent to the time given to him for filing his return pursuant to a notice under sub-section (2) to section 139. The Income-tax Officer has to apply his mind to the facts and circumstances of each case and decide and fast rule of universal application. We may add that there is no scope for presuming or assuming that an application filed by an assessee for extension of time must have been granted in its favour when no order has been passed on its application by the Income-tax Officer. There is no scope for such a presumption or deeming provision in a taxing statute. The Income-tax is a self-contained code. The provisions of the Act and the Rules made thereunder must specifically provide for such a deeming provision. Otherwise, the assessee cannot claim any advantage or derive benefit when the Income-tax Officer did not pass any order on its application filed beyond the time within whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extension of time filed by an assessee in accordance with Form No. 6, rule 13 of the Income-tax Rules, 1962, even when it is admittedly submitted long after the due date for filing the return, unless there be prima facie valid grounds taken therein, explaining the reasons for the delay. We, accordingly, answer the first question in the affirmative, that is to say, in favour of the revenue and hold that, on the facts and in the circumstances of the case, the tribunal was justified in deciding that the order of the Income-tax Officer imposing the penalty under section 271(1)(a) of the Act was in order, although there had been a petition for extension of time filed by the assessee and on which no specific order had been passed by the said Income-tax Officer. The next question relates to the quantification of the amount of penalty. It is contended by the assessee that the Income-tax Officer did not mention the amount of penalty in the penalty order and, as such, the order is defective and inoperative. We are, however, of the opinion that, although it would have been more appropriate if the amount of penalty had been quantified in the order passed by the Income-tax Officer, failure, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to when the assessee got his accounts from Calcutta and Delhi and thereafter to come to a decision whether there was any reasonable cause for delay, which would take him out from the penalty provisions for the entire or part of the period of his delay. No doubt, if the Appellate Assistant Commissioner comes to a decision in favour of the assessee and holds that the assessee has been able to establish a reasonable cause for his delay, there may be no further case for answering the questions referred to us by the Tribunal. If, however, on the contrary, the Apellate Assistant Commissioner comes to a finding adverse to the assessee, the questions would remain to be answered. It is in that view of the matter that we have answered them. We are also of the opinion that merely because of an order of remand by the Tribunal, a reference under section 256(1) of the Act does not become inadmissible. In this connection, we may refer to In re Trikamlal Maneklal, wherein it was held : " There is nothing express or implicit in sections 33(4) and 66(1) of the Income-tax Act which requires that the order passed by the Appellate Tribunal against which an application for reference of a question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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