Charging of interest under Section 139 (8) of the Income-tax Act, 1961, up to the date of filing of the return, implies extension of time to file the return and precludes imposition of penalty under Section 271 (1) (a) of the Act or launching of criminal prosecution under Section 276cc (ii) of the Act for the same default.

AJIT KUMAR SENGUPTA, J.

( 1 ) IN this application, the petitioner, the karta of a Hindu undivided family, commonly known as Gopalji Shaw, has challenged the criminal proceeding initiated under Section 276cc (ii) of the Income-tax Act, 1961, against the said family by the Income-tax Officer, "d" Ward, District IV (I), Calcutta. The facts are briefly stated hereafter.

( 2 ) FOR the assessment year 1982-83 relevant to the financial year ending March 31, 1982, the said family filed its returns of income under the Income-tax Act, 1961, on February 15, 1985, showing a total income of Rs. 23,810 only. At the time of filing the return for the said year, the petitioner also paid the tax of Rs. 4,645, being the tax on self-assessment under Section 140a of the said Act, on February 13, 1985. On February 15, 1985, the said family also filed its returns of income under the said Act for the assessment years 1983-84 and 1984-85.

( 3 ) THE first respondent, being the Income-tax Officer, "d" Ward, District IV (I), Calcutta, completed the assessment for the assessment year 1982-83 under Section 143 (1) of the said Act on December 16, 1985. After adjustment of the tax of Rs. 4,645 paid on self-assessment for the assessment year 1982-83, the petitioner was required to pay a further sum of Rs. 3,036 which the petitioner paid on December 20, 1986. In the assessment, the Income-tax Officer charged interest under, Section 139 (8) of the Act up to the date of filing the return. He also charged interest under sections 217 and 220 (2) of the Act.

( 4 ) THE first respondent also initiated penalty proceedings by a notice dated December 16, 1985, for the said assessment year 1982-83 under Section 271 (1) (a) of the said Act for failure to furnish the return of income within the time allowed under Section 139 (1) of the said Act. The first respondent, however, has not so far imposed any penalty under Section 271 (1) (a) of the said Act and the said proceedings are still pending.

( 5 ) IN February, 1987, the petitioner was served with a summons dated November 13, 1986, issued by the Chief Metropolitan Magistrate, Calcutta, under the provisions of the Criminal Procedure Code, wherein it was alleged, inter alia, that a criminal complaint being Case No. C/1462 of 1986 (State v. Gopalji Shaw) had been filed on November 11, 1986, in the court of the Metropolitan Magistrate, 11th Court, Calcutta, by the first respondent together with an authorisation dated nil issued by the second respondent, Commissioner of Income-tax, West Bengal-I, under Section 279 (1) of the said Act requiring the petitioner to appear in person or by pleader before the said Metropolitan Magistrate on December 17, 1986.

( 6 ) IN the said complaint dated November 11, 1986, the first respondent, inter alia, alleged that the petitioner failed and neglected to furnish the return of income by the due date, i. e. , on or before July 31, 1982, for the assessment year 1982-83. It was further alleged in the said complaint that the petitioner furnished the said return of income on February 15, 1985, instead of July 31, 1982, and the petitioner was also required to pay advance tax which was not paid. It was further alleged that the petitioner was a habitual defaulter in filing the return of income and committed an offence punishable under Section 276cc (ii) of the said Act. In the circumstances, the first respondent, inter alia, prayed for cognizance of the offence alleged to have been committed under Section 276cc (ii) of the said Act and issue of summons for the trial of the petitioner.

( 7 ) IN the said authorisation of the second respondent dated nil, under Section 279 (1) of the said Act, it was, inter alia, alleged that after due consideration of all the materials and circumstances, the second respondent was satisfied that the petitioner had wilfully failed to furnish his return of income for the assessment year 1982-83 in due time and thereby committed an offence under Section 276cc (ii) of

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