COMMISSIONER OF INCOME TAX Vs. BISHWANATH KHIRWAL

JUDGEMENT

(1.) A statement of the case has been submitted by the Income-tax Appellate Tribunal, Patna Bench " A ", Patna, under Section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), referring the following question of law in view of the direction of this court for our opinion :

(2.) THE facts of the case may be briefly stated. THE assessee was being assessed as a registered firm for several years. In respect of the assessment year 1971-72, the assessee filed a declaration under Section 184(7) of the Act on February 11, 1972, for continuation of registration of the firm. According to the requirement of law, such a declaration had to be filed along with the return. THE due date for filing the return was up to September 30, 1971. THE assessee had applied for extension of time for filing of return up to March 31, 1972. THE Income-tax Officer observed that the assessee had not applied for extension of the date for furnishing the declaration in Form No. 12. According to him, the condition laid down under proviso (ii) of Section 184(7) of the Act had not been fulfilled by the assessee and, hence, the continuation of registration was refused for the assessment year. THE order of the Income-tax Officer has been annexed and marked as annexure-A, forming part of the statement of the case.

(3.) OF course, in the present case, there is no material to show that the Income-tax OFficer allowed the application in Form No. 6 which was sent by registered post, vide Receipt No. 579 dated September 8, 1971. Mr. B. P. Rajgarhia, for the Revenue, has submitted that there is nothing on the record to show that Form No. 6 was sent to the Income-tax OFficer. It was the duty of the Department to show as to what the assessee sent by postal Receipt No. 579 dated September 8, 1971. The Department could have asserted that Form No. 6 was not sent by this receipt but some other document was sent and then the Department should have been satisfied as to what document was sent under that receipt. Under such circumstances, it has to be held that the assessee sent Form No. 6 by postal Receipt No. 579 dated September 8, 1971. The Appellate Assistant Commissioner as well as the Appellate Tribunal have accepted the contention of the assessee that Form No. 6 was sent to the Income-tax OFficer on September 8, 1971, and this is a finding of fact which cannot be disturbed in this reference application. I am of the view that once the assessee applied for extension of time and the Income-tax OFficer does not reject the prayer for extension of time for filing the return and does not communicate it to the assessee, then it has to be presumed that the assessee is right in presuming that extension of time has been granted. In this view, I am supported by a decision in the case of Lachman Chaturbhuj Java v. R. G. Nitsure [1981] 132 ITR 631, where it has been held by the Bombay High Court that if the Department chooses not to reply to the assessee's application for extension of time for filing return within the time applied for by the assessee, time is deemed to have been extended as prayed for by the assessee and he would be justified in assuming that his application has been granted by the Department. Under such circumstances, I hold that the Appellate Assistant Commissioner and the Appellate Tribunal rightly held that the assessee was justified in presuming that the Income-tax OFficer had extended the time for filing the return till March 31, 1972. As the assessee filed the return on February 11, 1972, it has to be held that the return was filed within the extended time.