Decided on July 21,1983

SANWAR MAL Respondents


KAPUR, J. - (1.): For the asst. yr. 1961-62 the following two questions have been referred to us:
"1. Whether, the return filed by the assessee on 26th March, 1966 for the asst. yr. 1961-62 was within time as prescribed under s. 22 of the IT Act, 1922?

(2.)WHETHER, on the facts and in the circumstances of the case, the penalty under s. 271(1)(a) of the Act could be cancelled on the principle of double jeopardy?"
2. As far as the first question is concerned the fact was that the return was filed on 26th March, 1966 though it was due on 30th June, 1961. A penalty was imposed by the ITO under s. 271(1)(a) of the IT Act, 1961 ('the Act'), on the basis that there was no reasonable cause for the delay in filling the return. This order was upheld by the AAC but the Tribunal basing itself on the Supreme Court decision in CIT vs. Kulu Valley Transport Co. (P) Ltd. (1970) 77 ITR 518 (SC) held that the penalty was not to be imposed as the return had been filed within the period of four years mentioned in s. 139(4) of the Act.

On this question the learned counsel has urged that the view of the Tribunal as stated in this case has been largely overruled by a large number of decisions. This Court has also dealt with this point in Addl. CIT vs. Bhagat Swarup Charanjit Singh and Co. (1981) 23 CTR (Del) 69 : (1982) 133 ITR 13 (Del). Following that judgment, we hold that the answer to this question has to be in the negative, in favour of the revenue and against the assessee.

Taking up the second question though this is a question of law and might arise if penal interest is imposed under one provision of the Act and penalty under another, we are not at all able to see from any fact appearing on record that this question actually arises. Under the provisions of the Act, the penal interest is imposed by s. 139 or some parts thereof and also by way of penalty under s. 271(1)(a) and it could be urged, as has happened in several reported cases that it is a case of double jeopardy. On the facts of the present case we do not find any case of double jeopardy because no penal interest appears to have been imposed against the assessee in this case. We, accordingly, decline to answer this question. The reference is accordingly disposed of. As there is no appearance for the assessee, no costs.


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