COMMISSIONER OF INCOME TAX Vs. GOLAPRAI HOONLAL AND CO

JUDGEMENT

(1.) THE question referred to this Court under S. 256(1) of the IT Act, 1961, by the Tribunal, Gauhati Bench, Gauhati, is as follows:

(2.) A notice had, however, been issued under S. 139(2) of the Act; this was served on February 21, 1963; on this footing the return had to be filed within 30 days of the service of the said notice. Sec. 139(1) of the IT Act provides for voluntary returns to be filed by the assessee as distinguished from S. 139(2), which provides for non -voluntary returns; in the latter case the ITO initiates action by the issue of a notice for submitting the return. Thus, it will be seen that there are two separate starting points of defaults in respect of the situations covered by S. 139(1) and S. 139(2) of the Act, respectively.

(3.) IT is pertinent to notice, even at this stage, that the above - said ITO does not appear to have adverted to this question of there being two separate starting points in respect of default in filing of the return under S. 139(1) and under S. 139(2) of the IT Act. Having noted that the authorised representative of the assessee had mentioned to him that the return was filed on December 11, 1963, the ITO, who was unable to find any application for extension of time for submission of return in the records as mentioned by the assessee, straightaway proceeded to make the assumption that the default in this case was for more than 14 months (on page 6 of the printed paper book, the expression "four" is an obvious error for "fourteen"); in saying so, the ITO obviously thought that the default arose under S. 139(1). The ITO did not even realise that the default could not, in any case, be for more than 12 months. Mr. J. P. Bhattacharjee, learned counsel for the assessee, has brought to our notice the fact that, by a general notification, time for submission of returns had been extended by two months and this period of two months had also to be added to the period of six months (it is now only four months according to the later amendment of S. 139(1), of the IT Act). In the first place, the ITO had made a mistake in recording the period of default as being "more than 14 months", whereas it should have been only "more than 12 months", according to the computation of time, even if it fell within S. 139(1) of the Act. In the second place, the ITO did not also bear in mind the fact that a notice under S. 139(2) of the Act had been issued and this by itself gave the time to the assessee to file his return within 30 days after the service of the notice; in this view of the matter there could not have been default of more than 7 months committed by the assessee in the matter of submitting the return.