CALCUTTA CHROMOTYPE PVT LTD Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) In my opinion this application under Article 226 of the Constitution should succeed and the rule should be made absolute.

(2.) The petition involves a consideration of certain provisions of the Super Profits Tax Act, 1963, which had a very short existence as it was superseded by the enactment of the Companies (Profits) Surtax Act, 1964. Under the 1963 Act, a charge of tax was on the chargeable profits of the previous year which exceeded the standard deduction at the rate specified in Schedule III of the Act. Section 6 provided for the making of returns. Sub-section (1) of that section enacted that every company, whose chargeable profits assessable under the Act exceeded during the previous year the amount of standard deduction, should furnish a return of its chargeable profits during the previous year and the amount of any deficiency available for being set off against such profits in the prescribed form and verified in the prescribed manner on or before the 30th day of September of the assessment year. It was further provided that, on an application being made in that behalf, the Income-tax Officer might, in his discretion, extend the date for the furnishing of the return. Sub-section (2) provided that, where the Income-tax Officer had reason to believe that a company was assessable under the Act, he might serve a notice upon its principal officer to furnish within 30 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. There was also a proviso to this sub-section that on an application being made, the Income-tax Officer might in his discretion extend the date for the furnishing of the return. Sub-section (3) of that section, which is material for the purposes of this application, was as follows:

(3.) Dr. Pal, appearing for the petitioner, submits that under Section 6(3) of the Act, the petitioner was entitled to furnish a return at any time before the assessment was made and in fact such a return was filed and accepted by the respondent and an assessment made on the basis of such return. Therefore, there was no failure on the part of the petitioner to furnish a return as required under Section 6 and therefore the impugned notice for the purpose of imposing penalty under Section 10 was bad in law as the Income-tax Officer was not entitled to impose any such penalty. Dr. Pal pointed out that the provisions of the said Section 6 are similar to those of Section 139 of the Income-tax Act, 1961, and Section 22 of the Income-tax Act, 1922. Under Section 139(1) of the 1961 Act every person whose total income exceeds the taxable limit has to furnish a return verified in the prescribed manner on or before the 30th June of the assessment year. There is a proviso to that section empowering the Income-tax Officer to enlarge the time on an application being made by the assessee. Similarly, Sub-section (2) of that section empowers the Income-tax Officer to serve a notice on a person, who is assessable under the Act, to file a return within 30 days from the date of the notice and in that case also there is a provision allowing the Income-tax Officer to extend the time for furnishing the return on an application made to that effect by the assessee. Sub-section (3) of Section. 22 of the Act of 1922 and Sub-section (5) of Section 139 of the Act of 1961 provide that: