DEVASSY P V Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference at the instance of the assessee under Section 256(1) of the Income-tax Act, 1961.

(2.) THE question of law referred is :

(3.) THE first argument for the assessee was that for imposition of penalty under the sub-section two conditions must be satisfied, namely, that there must be a failure to file the return within the time allowed and also a failure to file the return in the manner prescribed. THE contention was that although the assessee has not filed the return within the time allowed. when he filed it he had filed it in the manner prescribed; and as one of the conditions was not satisfied, no penalty can be imposed. In other words, counsel for the assessee argued on the basis of the ruling of this court in Abraham v. Sales Tax Officer, Ponkunnam, 1964 15 STC 110, which was affirmed by the Supreme Court in Sales Tax Officer v. Abraham, [1967] 20 S.T.C. 367, [1967] 3 S.C.R. 518 (S.C.), that the words "in the manner prescribed" would not take in the time element, and, therefore, by filing the return containing the relevant particulars, though out of time, the asses-see has not failed to file the return in the manner prescribed, and, therefore, one of the conditions necessary to be satisfied for imposing the penalty under the sub-section was absent. We are unable to accept this contention. An assessee is required to file the return within the time allowed and in the manner prescribed in order that the Income-tax Officer may complete. the assessment within the period specified in the Income-tax Act. If the return is not filed in time or, if filed in time, it does not contain all the particulars required, it will not be possible for the Income-tax Officer to complete the assessment within the period specified in the Act. In other words, me object of the legislature in insisting upon the assessee filing the return within the time and in the manner prescribed is to enable the Income-tax Officer to complete the assessment within a period of four years as specified in the Act and that object will be frustrated unless the assessee files the return within the time allowed and in the manner prescribed. To carry out the object of the legislature it is necessary to attach a sanction for the failure to fulfil any of the two conditions. If the object is clear, we do not think the use of the conjunctive word " and " in the sub-section is conclusive. THE word " and " has generally a cumulative sense, and is thus the antithesis of disjunctive " or " ; but occasionally it is permissible to read "and" as "or" if the context so requires. In Ishwar Singh Bindra v. State of U.P., AIR 1968 SC 1450, it is observed :