JUDGMENT
Amiya Kumar Mookerji, J.
1. The petitioner, a registered firm within the meaning of Section 2(23) and Chapter XVI of the Income-tax Act, 1961, filed return for the assessment year 1964-65, on the 31st December, 1965. By an order dated February 26, 1967, the Income-tax Officer assessed the petitioner under Section 143(3)/182(i) of the Act as a registered firm for a total income of Rs. 31,692 and charged interest for delay in filing return. Thereafter, on January 30, 1967, a notice under Section 274 read with Section 271 of the Act was issued upon the petitioner calling upon him to show cause why an order imposing penalty should not be made under Section 271 of the Act as the petitioner without reasonable cause failed to furnish the return under Section 139(1) within the period allowed and in the manner required under the said section. Thereafter, by an order dated February 3, 1969, a penalty being 2 per cent. on the tax for the period of default, was imposed by the Income-tax Officer upon the petitioner. The petitioner being aggrieved by the said order of penalty dated February 3, 1969, filed revision under Section 264 of the Act on the 5th February, 1970. By an order dated June 30, 1960, the Additional Commissioner of Income-tax declined to interfere with the order of the Income-tax Officer imposing the penalty. The petitioner being aggrieved by the said order of the Additional Commissioner as well as the order of February 3, 1969, passed by the Income-tax Officer imposing penalty of Rs. 2,080 moved this court in an application under article 226 of the Constitution, and obtained the present rule.
2. Mr. Khetry, appearing on behalf of the petitioner, in support of the rule urged that the Income-tax Officer having accepted the petitioner’s return filed under Section 139 of the Act by issuing notice under Section 143(2) and charged interest under Section 139(1) of the Act, it is not permissible to impose any penalty under Section 271 of the Act.
3. It is next contended that since the taxable limit of a registered firm was Rs. 25,000 no penalty could be levied in view of Section 273(3)(a) of the Act. Lastly, it is contended that under Section 139(4) of the Act an assessee may furnish the return at any time before the end of the period specified in Clause (b) of Section 139(1) of the Act and, admittedly, the petitioner filed the return before the assessment is made, so no penalty can be imposed upon the petitioner.
4. The provisions of Section 139(1) and 271(1)(a)(i) make it clear that the assessee in all cases has to file a return if his income exceeds the maximum amount not chargeable to tax and if he fails to file the return within the period stated in Section 139(1), the penalty can be imposed under Section 271(1)(a)(i) of the Act. The petitioner in this case did not apply for extension of time to furnish the return. So the acceptance of return by the Income-tax Officer filed out of time will not debar the Income-tax Officer from imposing penalty upon the petitioner for non-filing of the return within time.
5. It is true that the petitioner filed the return showing income of Rs. 16,839, but the petitioner was assessed to tax amounting to Rs. 31,692 which is more than Rs. 25,000. Therefore, there is no substance in the contention of the petitioner that under Section 271(3)(a) of the Act no penalty can be imposed upon the petitioner as the taxable limit for a
registered firm was Rs. 25,000.
6. Section 139(4) of the Act only permits the assessee to file a return beyond the time allowed under Section 139(1) or 139(2) of the Act before the assessment is made, but it does not exonerate the assessee from the terms and conditions of Section 271(1)(a) of the Act which is applicable for violation of the requirements of Section 139(1) of the Act.
7. Therefore, all the points raised by Mr. Khetry fail and this rule is discharged.
8. There will be no order for costs.
