K JAGADEESAN Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner is the sole accused in E. O. C. C. No. 284 of 1989, pending on the file of the Additional Chief Metropolitan Magistrate (E. O. I.), Madras. On a private complaint preferred by the respondent who is the Income-tax Officer, City Ward V(2), Madras, the petitioner is being prosecuted for having committed an offence punishable under section 276CC of the Income-tax Act, 1961.Both counsel agree that the only question to be decided in this petition is whether, by charging interest under section 139(8) of the Act, the Income-tax Officer had impliedly extended the time to file the return and hence wilful default in filing the return of income cannot at all arise.Mr. K. A. Panchapagesan would strenuously urge that the amendment to section 139 of the Act in 1971 had only recast the section and nothing new had been imported by such amendment.

(2.) ON the contrary, Mr. Ramaswamy, K., would urge that the proviso to section 139(1)(b) of the Act would indicate a vital change and, irrespective of the extension of time, interest will have to be inevitably levied by the Income-tax Officer who had no discretion in the matter. He pointed out that section 139(8) of the Act, before the amendment in 1971, is now the proviso to section 139(8)(a) after amendment. Both learned counsel relied upon certain decisions in support of their respective contentions.

(3.) THE fact that such interest was waived subsequently by the Commissioner would not make any difference in principle inasmuch as it was the primary act of the Income-tax Officer in accepting the return filed and charging interest up to the date of the filing which raised the presumption of extension of time. As the Income-tax Officer had levied interest up to the date of the filing of the return, he was not justified in further invoking penalty proceedings. Even in the three assessment years where time was in fact extended by the Income-tax Officer, the charging of interest up to the dates of the filing of the returns after the extended period gave rise to the presumption of further extension of time for the filing of the returnsTHE aforestated facts clearly show that the decision rested on the law before certain amendments were introduced with effect from April 1, 1971, to section 139 of the Act.