JUDGMENT [ENTITY], J.
1. The Income Tax Appellate Tribunal, Chandigarh Bench, Chandigarh ('the Tribunal'), at the instance of the revenue, while exercise jurisdiction under [SECTION] of the [ACT], has referred the following question of law, which is claimed to have arisen from order dated 27-8-1997, passed in [CASE NUMBER], in respect of assessment years 1981-82 and 1982-83:
Whether on the facts and in the circumstances of the case, the IT AT was right in law in holding that no penalty for late filing of return has been prescribed in the [ACT]?
2. The assessee filed its return under the [ACT]for brevity 'the [ACT]') on 23-2-1985, which was required to be filed under [SECTION] of the [ACT] by 30-9-1982. The assessing officer imposed a penalty of Rs. 20,568 under [SECTION] of the [ACT] for late filing of return. The assessee filed an appeal before the Commissioner (Appeals), who vide its order dated 10-8-1992, deleted the penalty holding that no penalty was leviable for late filing of return if the return had been filed before completion of the assessment. It is admitted fact that the assessment was completed on 1-9-1989 much after the filing of return.
3. The revenue then filed an appeal before the Tribunal, which has been dismissed vide order dated 27-8-1997 by approving the order of the Commissioner (Appeals) and by placing reliance on the Division Bench judgment of Allahabad High court in the case of [PRECEDENT] and a Division Bench judgment of Calcutta High Court in the case of [PRECEDENT] .
4. Mr. [ENTITY], learned Counsel for the revenue has argued that if the late filing of return is without any reasonable cause then [SECTION] of the [ACT] would be attracted and penalty in addition to the amount of Sur tax payable could be imposed. He has placed reliance on [SECTION] of the [ACT] in support of his submission. According to the learned Counsel, the provision made in [SECTION] of the [ACT] cannot be read to mean that return can be filed any time before completion of the assessment.
5. 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 [SECTION] of the [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 [SECTION] of the [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 prescribed manner and setting forth such other particulars as may be prescribed, before the 30th day of September of the assessment year:
Provided that on an application made in this behalf, the assessing officer may, in his discretion, extend the date for the furnishing of the return.
(2) In the case of any company which in the assessing officer's opinion is assessable under this Act, the assessing officer 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 [SECTION] of the [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 assessing officer 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-section (1) or subsection (2), or having furnished a return under subsection (1) or Sub-section (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.
6. A plain reading of [SECTION] would show that the return by an assessee has to be filed before 30th September of the assessment year. The date for filing the return in the discretion of the assessing officer could be extended. However, a plain reading of Sub-section (3) clarifies that if any assessee has not furnished a return during the time allowed under subsection (1) or Sub-section (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 [SECTION] of the [ACT] at this stage and the same reads asunder:
9. If the assessing officer, in die course of any proceedings under this Act, is satisfied that any person has, without reasonable cause, failed to furnish the return required under [SECTION], or to produce or cause to be produced the accounts, documents or other evidence required by the assessing officer under [SECTION], 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 sur tax payable, a sum not exceeding -
(a) where the person has failed to furnish the return required under [SECTION], the amount of sur tax payable.
(b) in any other case, the amount of sur tax which would have been avoided if the return made had been accepted as correct:
Provided that the assessing officer shall not impose any penalty under this section without the previous authority of the Deputy Commissioner.
7. A perusal of the aforementioned provision would show that if the assessing officer is satisfied that any person has without a reasonable cause failed to furnish the return required to be filed under [SECTION], then penalty may be imposed on him.
8. The aforementioned provisions have been considered by a Division Bench of Kerala High Court in the case of [PRECEDENT] . Following the judgments of Allahabad High Court and Calcutta High Court in the cases of [PRECEDENT] (supra) and [PRECEDENT] (supra), the Division Bench took the view that [SECTION] would be attracted only if the assessing officer is satisfied that the assessee has failed to furnish the return without any reasonable cause as required by [SECTION]. The observations of the Division Bench interpreting [SECTION] and [SECTION] of the [ACT], read as under:
The provisions of [SECTION] would, therefore, be attracted only if the assessing officer is satisfied that a person has, without reasonable cause, failed to furnish the return as required under [SECTION]. Under [SECTION], the assessee is required to file his return on or before September 30of the assessment year. There is also power in the assessing officer to extend the date for furnishing the return. [SECTION] further provides that any assessee who has not furnished the return during the time allowed under Sub-section (1) may furnish a return at any time before the assessment is made. Therefore, the assessee has a right to furnish the return before the assessment is made. There is no provision under [SECTION] which imposes a penalty for filing the return after September 30 of any assessment year or the extended date and before the assessment is made. In other words, there is no provision in [SECTION] for levying a penalty only for a late filing of the return, even though the return may be filed before the assessment is made. The provisions of [SECTION] would not be attracted in a case where the assessee had in fact filed the return, before the assessment is made and the assessment has been made on the basis of the return filed by the assessee.
Looked at slightly differently, since under [SECTION], a return, can be filed by an assessee before the assessment is made, it cannot be said in the case of an assessee who has filed the return before the assessment is made, that he has failed to furnish the return as required under Section. The assessee, in the present case, having furnished the return within the time prescribed in [SECTION] cannot, therefore, be considered as having failed to furnish the return as required under [SECTION]. We are fortified in our conclusion by the decisions of at least three High Courts which were pointed out to us.(p. 380)
9. We are in respectful agreement of the aforementioned view expressed by the learned Judges of Kerala High Court and, therefore, the order passed by the Tribunal deserves to be upheld.
10. Accordingly, the question is answered against the revenue and in favour of the assessee.