M.M.KUMAR, J. - (1.) THE Income -tax Appellate Tribunal, Chandigarh Bench, Chandigarh (for brevity, 'the Tribunal'), at the instance of the Revenue, while exercising jurisdiction under s. 256(1) of the IT Act, 1961 (for brevity, 'the Act'), has referred the of 1992, in respect of asst. yrs. 1981 -82 and 1982 -83 : "Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that no penalty for late filing of return has been prescribed in the Companies (Profits) Surtax Act, 1964 - Rs. 20,568 under s. 9 of the 1964 Act for late filing of return. The assessee filed an appeal before the CIT(A), who vide return had been filed before completion of the assessment. It is admitted fact that the assessment was completed on 1st approving the order of the CIT(A) and by placing reliance on the Division Bench judgment of Allahabad High Court in the case of CIT vs. Anchor Pressing (P) Ltd. (1982) 26 CTR (All) 447 : (1982) 136 ITR 505 (All) and a Division Bench judgment of Calcutta High Court in the case of Calcutta Chromotype (P) Ltd. vs. ITO (1971) 80 ITR 627 (Cal).
(2.) MR . Yogesh Putney, learned counsel for the Revenue has argued that if the late filing of return is without any reasonable cause then s. 9 of the 1964 Act would be attracted and penalty in addition to the amount of Surtax payable could be imposed. He has placed reliance on s. 9 of the 1964 Act in support of his submission. According to the learned counsel, the provision made in s. 5(3) of the 1964 Act cannot be read to mean that return can be filed any time before completion of the assessment.
(3.) WE have thoughtfully considered the submission made by the learned counsel and regret our inability to accept the same. It would be appropriate to make a reference to s. 5 of the 1964 Act, which reads as under : "5. Return of chargeable profits. - -(1) In the case of every company whose chargeable profits assessable under this Act exceeded, during the previous year, the amount of statutory deduction, its principal officer, or where in the case of a non -resident company any person has been treated as its agent under s. 163 of the IT Act, such person, shall furnish a return of the chargeable profits of the company during the previous year in the prescribed form and verified in the the assessment year : Provided that on an application made in this behalf, the AO may, in his discretion, extend the date for the furnishing of the return. (2) In the case of any company which in the AO's opinion is assessable under this Act, the AO may, before the end of the relevant assessment year, serve a notice upon its principal officer, or where in the case of a non -resident company any person has been treated as its agent under s. 163 of the IT Act, upon such person, requiring him to furnish within thirty days from the date of service of the notice a return of the chargeable profits of the company during the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Provided that on an application made in this behalf, the AO may, in his discretion, extend the date for the furnishing of the return. (3) Any assessee who has not furnished a return during the time allowed under sub -s. (1) or sub -s. (2), or having furnished a return under sub -s. (1) or sub -s. (2), discovers any omission or wrong statement therein, may furnish a return or a revised return, as the case may be, at any time before the assessment is made." assessment year. The date for filing the return in the discretion of the AO could be extended. However, a plain reading of sub -s. (3) clarifies that if any assessee has not furnished a return during the time allowed under sub -s. (1) or sub -s. (2) then such an assessee may furnish a return at any time before the assessment is made. It would also be appropriate to refer to s. 9 of the 1964 Act, at this stage and the same reads as under : "9. If the AO, in the course of any proceedings under this Act, is satisfied that any person has, without reasonable cause, failed to furnish the return required under s. 5, or to produce or cause to be produced the accounts, documents or other evidence required by the AO under sub -s. (1) of s. 6, or has concealed the particulars of the chargeable profits or has furnished inaccurate particulars of such profits, he may direct that such person shall pay, by way of penalty, in addition to the amount of surtax payable, a sum not exceeding - - (a) where the person has failed to furnish the return required under s. 5, the amount of surtax chargeable under the provisions of this Act. (b) in any other case, the amount of surtax which would have been avoided if the return made had been accepted as correct : Provided that the AO shall not impose any penalty under this section without the previous authority of the Dy. CIT." A perusal of the aforementioned provision would show that if the AO is satisfied that any person has without a reasonable cause failed to furnish the return required to be filed under s. 5, then penalty may be imposed on him.;