Patna High Court
Veena Theatres vs Union Of India (Uoi) And Ors. on 21 January, 1977
Equivalent citations: 1977(25)BLJR154, [1977]109ITR748(PATNA)
JUDGMENT
1. These two writ applications have been heard together and are being disposed of by a common judgment.
2. C.W.J.C. No. 653 of 1972 relates to the assessment year 1963-64 whereas C.W.J.C. No. 257 of 1973 relates to the assessment year 1962-63 in relation to assessments made under the provisions of the Income-tax Act (hereafter referred to as "the Act"). It appears that for both the aforesaid years the petitioner did not submit its return under Section 139(1) of the Act. Notice was given under Section 139(2) of the Act to file return. In spite of the notice the return was not filed. However, before the assessment and within the time allowed under Section 139(4) of the Act, returns were filed. After the filing of the returns, there was assessment for both the years. The assessment order did not specifically state that any interest was to be charged for the late filing of the returns. The demand notice, however, indicated that the petitioner was to pay interest under Section 139 of the Act. The demand notice was served in C.W.J.C. No. 653 of 1972 on 29th March, 1968. Thereafter, on 8th May, 1968, the petitioner filed an application under Section 154 of the Act for rectification. In C.W.J.C. No. 257 of 1973 the demand notice was served on 4th April, 1967. The application under Section 154 was, however, filed after a lapse of over one year, i.e., on 7th May, 1968. The case of the petitioner in both the applications was that the interest had been wrongly charged as no interest was payable.
3. It is not in dispute in these cases that the returns that were filed by the petitioner were under Section 139(4) of the Act. The contention of the petitioner before the authorities and in this court is that no interest could be charged under the aforesaid provision as the petitioner had not filed any application in the prescribed form for extension of the time for filing the return. The argument of the learned counsel is that Section 139(4) states that the provision of Clause (3) of the proviso to Sub-section (1) of Section 139 shall apply. The provision aforesaid must be applied as a whole. So applied, it requires the filing of an application in the prescribed manner. Admittedly, no such application having been filed, the provision regarding payment of interest, as envisaged in Clause (3) of the proviso to Sub-section (1) of Section 139 shall not apply. Learned counsel relied on the decision in the case of Garg & Co. v. Commissioner of Income-tax [1974] 97 ITR 639 (Delhi) as also on a Bench decision of this court in Commissioner of Income-tax v. Bahri Bros. P. Ltd. [1976] 102 ITR 443 (Pat). Learned counsel for the department contended that Bahri Bros.'s case [1976] 102 ITR 443 (Pat) was distinguishable and the Delhi High Court in the case of Garg & Co. [1974] 97 ITR 639 (Delhi) had not laid down the correct law.
4. According to him, the correct law had been laid down by the Gauhati and Orissa High Courts in the cases of Ganesh Das Sreeram v. Income-tax Officer [1974] 93 ITR 19 (Gauhati) and Biswanath Ghosh v. Income-tax Officer [1974] 95 ITR 372 (Orissa). The other contention that was raised on behalf of the department was that the petitioner had filed application under Section 154 of the Act. The aforesaid section envisages rectification of mistakes apparent from the record. Assuming that there was some mistake, the said mistake could not be said to be a mistake apparent from the record and, as such, this section was inapplicable. The authorities had, therefore, rightly dismissed the application of the petitioner. It was also contended that the writ jurisdiction was not a proper forum as the petitioner should have come for reference before this court. It was also contended that the petitioner should have gone in appeal after the receipt of the notice of demand and the application under Section 154 of the Act was not maintainable.
5. In our view, the decision in Bahri Bros.'s case [1976] 102 ITR 443 (Pat) is distinguishable. So far as the conflict of opinion between the Delhi High Court and the Gauhati and Orissa High Courts is concerned, we need not express any opinion as, in our view, the contention of the department that the application under Section 154 of the Act was not maintainable appears to be correct. Bahri Bros.'s case [1976] 102 ITR 443 (Pat) was a case in which the return was not filed under Section 139(4) of the Act. What was considered there was Section 139(2) of the Act and the circumstances in which interest could be charged where the section applied. Here, admittedly, the return filed by the petitioner was under Section 139(4) of the Act and the decision aforesaid is, therefore, no authority so far as interpretation of Section 139(4) is concerned.
6. The expression " mistake apparent from the record " has been the subject-matter of numerous decisions. The law, as now settled, has been concisely stated in the Income-tax Act by Kanga and Palkhivala, fifth edition, volume I, page 719, as follows :
"A decision on a debatable point of law or failure to apply the law to a set of facts which remain to be investigated cannot be corrected by way of rectification."
7. Several cases have been mentioned as authority for the proposition. It would, therefore, appear that a debatable point of law cannot be said to be covered by Section 154 of the Act. That the point involved in these cases is debatable is clearly apparent from the fact that different High Courts have taken different views on the point. In our view, therefore, Section 154 of the Act was not applicable and the authorities below did not commit any error in not entertaining the application under Section 154 of the Act. In this view of the matter, it is not possible to give any relief to the petitioner in these writ applications.
8. It is not necessary for us, in the circumstances, to discuss the other contentions raised on behalf of the department.
9. These applications are, accordingly, dismissed but without costs.