SHANKARLALL GOENKA Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) COMMON questions of law are involved in these three writ petitions under Art. 226 of the Constitution. The facts are also similar. In C.R. No. 419/70, the petitioner derived income in the asst. year 1962 -63 from two firms, M/s Ganeshdas Sreeram and M/s A. V. Morello & Co. The major income was from M/s Ganeshdas Sreeram which is a registered firm. Respondent No. 1, the ITO, A - Ward, Shillong, assessed the petitioner on the return filed by the petitioner under S. 141 of the IT Act, 1961, and found a total income of Rs. 72,102 and demanded an amount of Rs. 36,961.39 as tax including a sum of Rs. 3,881.39 as interest under S. 139. Thereafter, respondent No. 1 made the final assessment under S. 143(3)/154 of the said Act and found the total income of the petitioner to be Rs. 91,174. In pursuance of the said assessment order, respondent No. 1 issued a demand notice dated March 27, 1967, for payment of a sum of Rs. 57,735 as tax for the assessment year. Out of this amount, Rs. 36,961 was paid. A demand notice for Rs. 20,774 was issued. This included an amount of Rs. 7,351 as interest under S. 139 of the IT Act, 1961. Against the imposition of interest on the petitioner for filing the return beyond the specified time allowed under S. 139, the petitioner filed a petition for waiver of the interest as provided under r. 11 7A of the I.T. (Second Amend.) Rules, 1964. That petition was rejected on May 30, 1969. The firm, M/s Ganeshdas Sreeram, of which the petitioner is one of the partners, filed an appeal against the assessment order and the demand notice issued to the firm before the AAC who fixed the income of the petitioner at Rs. 74,704 for the asst. year 1962 -63. Respondent No. 1 issued a fresh notice of demand. According to this assessment, the petitioner had to pay Rs. 38,766, out of which Rs. 36,961 had already been paid. The demand notice was, therefore, issued for Rs. 1,805. The tax of Rs. 38,766 demanded from the petitioner included interest, under S. 139, of Rs. 4,071.

(2.) IT is the first contention of the petitioner that he had not filed any application for extension of time for filing the return and that, therefore, no interest can be charged under S. 139(4). unregistered firm for purposes of charging interest under sub -cl. (a) of cl. (iii) of the proviso to sub -s. (1) of S. 139 and the firm was charged interest on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm. Under the provisions of the IT Act, the partners of an unregistered firm are not liable to pay any tax on the income derived from the unregistered firm.

(3.) THE relevant part of S. 139 of the IT Act, 1961, hereinafter referred to as "the Act", reads as follows :