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TMI Blog1991 (1) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in Form No. 6. He further observed that the return had been filed late by 10 months even after filing the return of income in the case of firm of M/s Texbro Corporation, wherein the assessee was a partner. He, therefore, held that the assessee had committed a default punishable under section 271(1)(a) of the Act and accordingly levied a penalty of Rs. 13,410. 3. In appeal, the learned CIT(A) felt satisfied that the assessee had submitted application in form No. 6 to the ITO seeking extension up to 30th September, 1982 but the ITO had not replied to the said application. Relying upon the Gujarat High Court decision in the case of CIT v. Gordhanbhai Jethabhai [1983] 142 ITR 84, he condoned the delay up to 30th September, 1982. He further accepted assessee's contention that delay caused due to non-completion of firm's accounts constituted a reasonable cause to the assessee for not filing her return in time. In this behalf he relied upon the M.P. High Court decisions in the cases of CIT v. Dwarkadas Moolchand [1982] 134 ITR 392 and Kishandas Agarwal, 141 ITR (sic). However, he noted that the return of income in the case of firm of M/s Arcoy Services was filed on 3-8-1983 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le penalty were required to be considered in a given case. The High Court pointed out that imposability of penalty on a partner should depend upon a consideration of the following circumstances, namely :-- (a) whether he is a partner of a registered firm or unregistered firm ; (b) whether he has income other than share income or not and, if so, the nature and extent of such income ; (c) whether he is one of several partners to whom any contumacious conduct on the part of the firm could not be attributed or whether he is for all practical purposes the brain behind the firm or able to control its affairs and was responsible for its delays and defaults : (d) whether any penalty has been or can be imposed on the firm and if so the extent and nature thereof ; and (e) whether the partner has any independent reason for the delay in the filing of the return apart from that urged in the case of the firm. The CIT(A) appears to have examined the case of the assessee in the light of the above guidelines. Since the ITO had ignored the very extension application wherein the assessee had mentioned the relevant facts regarding the non-completion of the accounts of the firms wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue. In the result, the appeal by revenue should fail. Assessee's cross objection 8. Now coming to assessee's cross objection, the relevant facts have been mentioned above. Without dispute delay up to 3rd August, 1983 when the latest return in the case of M/s Arcoy Services had been filed stood satisfactorily explained. That means that the assessee had reasonable cause for not filing her return up to 3rd August, 1983. Admittedly the return was filed on 29-10-1983. The question arises as to whether the period between 3rd August, 1983 and 29th October, 1983 should make default for " one month " or " two months ". 9. It seems to us that the word " month " occurring in the language of section 271(1)(a) of the Act has been construed differently by different High Courts. The Allahabad High Court, in the case of CIT v. Laxmi Rattan Cotton Mills Co. Ltd. [1974] 97 ITR 285 has taken the view that the word " month " occurring in section 271(1)(a) must be taken to mean a period of " 30 days ". The basis for this view is that section 271(1)(a) was enacted for the purpose of imposing a penalty on an assessee who has not filed his return within the prescribed time and its object was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinction between " a lunar month " and " a calendar month " had been clearly pointed out by the Calcutta High Court. The Madras High Court further observed that even under the English Law, the lunar month meant only 28 days and not 30 days. Giving specific illustrations the Madras High Court pointed out that the word " month " occurring in the language of section 271(1)(a) of the Act shall have to be assigned the meaning given to the said term by section 3(35) of the General Clauses Act, 1897 and not that given to " a lunar month " as per English decisions. 11. The view expressed by the Madras High Court in the case of Kadri Mills Coimbatore Ltd. was followed by the Calcutta High Court in Brijlal Lohia's case and the Karnataka High Court in the case of B. V. Aswathiah Bros. It may be mentioned that in all the three cases the view expressed by the Allahabad High Court in the case of Laxmi Rattan Cotton Milks Co. Ltd. was considered and was dissented from. With great respect to their Lordships of the Allahabad High Court we feel inclined to follow the view expressed by the Madras, Calcutta and Karnataka High Courts in the cases referred to above. 12. We are of the opinion tha ..... 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