Express Newspapers (P.) Ltd. vs Income Tax Officer, Administration and Collection and Another

Ramanujam, J.—In the above three writ petitions, the petitioner challenges the orders of the Income Tax Officer, levying penalty u/s 271(1)

(a) of the Income Tax Act for the submission of the returns for the assessment years 1960-61, 1961-62 and 1962-63 after a delay of 26, 18 and

31 months respectively. The grounds urged in the writ petitions originally were two-fold: (1) that the levy of penalty u/s 271(1)(a) in respect of all

the three years violated Article 14 of the Constitution ; and (2) that the levy of penalty u/s 271(lXa) as well as interest u/s 139(1) of the new Act

for delayed submission of the return is invalid as amounting to a double penalty for the same default. On the first question the petitioner''s

contention was that the levy of penalty u/s 297(2)(g) read with Section 271(1) for the offences u/s 28 violated Article 14 of the Constitution as the

liability for penalty and the quantum thereof have to depend on a mere fortuitous circumstance of the assessment having been completed before or

after the new Act came into force and the classification made between assessees whose assessments have been completed before April 1, 1962,

and those whose assessments have not been completed by that date in the matter of levy of penalty is discriminatory. But, such a contention has

been negatived by the Supreme Court in Jain Bros. and Others Vs. The Union of India (UOI) and Others, . The first contention, therefore, has to

fail. Even the petitioner''s second contention cannot be upheld. When the statute prescribes a time limit for filing a return, it can also provide a

penalty for non-submission of the return in time. In addition the statute can also provide as a compensatory measure that interest due on the amount

of tax for the period of delay should also be paid. Therefore, the provision for payment of penalty as well as interest for the delayed submission of

return cannot be said to offend any constitutional provision.

The petitioner obviously realising that the grounds as originally raised cannot be sustained has recently filed three petitions for leave to raise

additional grounds. The additional grounds sought to be raised in these three petitions relate to the interpretation of Section 271(1)(a)(i). According

to the petitioner on a proper interpretation of Section 271(1)(a)(i) the orders levying penalty in this case and particularly the quantum thereof need

modification. But, if the attack is mainly on the quantum of penalty levied, the proper forum for agitating that question will be the appellate

authorities constituted under the Income Tax Act. The petitioner cannot bypass those statutory remedies and come to this court challenging the

penalty orders on merits.

It is seen that in respect of the assessment year 1962-63 the petitioner filed an appeal before the Appellate Assistant Commissioner, but the

same was dismissed on merits and the petitioner did not pursue the ''matter further by filing an appeal before the Tribunal. In respect of the other

two assessment year^, 1960-61 and 1961-62, the penalty orders have not been challenged before the appellate authority. If the quantum of

penalty alone is challenged, the petitioner has to proceed by way of appeal before the appellate authority in the first two years and before the

Tribunal in the third year. It is stated by the learned counsel for the petitioner that the time for filing appeals in all the three cases had already

expired. But, it is open tc the petitioner to file appeals challenging the penalty orders for all the three years along with applications for excusing the

delay on the ground that the appeals could not be filed in time as he has been pursuing his remedies before the Central Board of Revenue as well

as before this court. In that view we are not inclined to permit the petitioner to raise additional grounds at this stage and to express our opinion on

the interpretation of Section 271(1)(a)(i). The writ petitions as well as the petitions for leave to raise additional grounds are, therefore, dismissed.

There will, however, be no order as to costs.

It is however made clear that it is open to the petitioner to go before the Appellate Assistant Commissioner in respect of the assessment years

1960-61 and 1961-62 and before the Tribunal in respect of the year 1962-63 by filing appeals with petitions to excuse the delay, and we have no

doubt that the appellate authorities will take into consideration the remedies pursued by the petitioner before the Central Board of Revenue as well

as before this court while disposing of the petitions, if any, filed for excusing the delay.