SUHAS CHANDRA SEN, J. - (1.) THE Tribunal has referred the following question of law under s. 256(1) of the IT Act, 1961, to this Court: "Whether, on the facts and in the circumstances of the case, and on a correct interpretation of cl. (iii) of the proviso to s. 139(1) and s. 139(4)(a) of the IT Act, 1961, the Tribunal was correct in holding that when the assessee had not applied for extension of the date for furnishing the return of income, no interest could be charged under, cl. (iii) of the proviso to s. 139(1) of the said Act for the delayed submission of the return of income ?"
(2.) THE assessment year involved is 1970-71, for which the relevant accounting period is 1969 calendar year. Sec. 139(1) as it stood during the relevant period required every person whose total income during the previous year exceeded the maximum amount which was not chargeable to income-tax to furnish a return of his income in the prescribed form and verified in the prescribed manner within a period of six months from the end of the previous year or before the 30th day of June, of the assessment year, whichever was later. There was a proviso to s. 139(1) which at the relevant time stood as under : "Provided that, on an application made in the prescribed manner, the ITO may, in his discretion, extend the date for furnishing the return-- (i) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired on or before the 31st day of December, of the year immediately preceding the assessment year, and in the case of any person referred to in cl. (b), up to a period not extending 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 cls. (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 cl. (b) of s. 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."
(3.) SEC . 139(4) provided : "139(4)(a). Any person who has not furnished a return within the time allowed to him under sub-s. (1) or sub-s. (2) may, before the assessment is made, furnish the return for any previous year at any time before the end of the period specified in cl. (b), and the provisions of cl. (iii) of the proviso to sub-s. (1) shall apply in every such case; (b) the period referred to in cl. (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.";