The assessee is not liable to pay interest under section 139(1) of the Income-tax Act, 1961, for late filing of the return without applying for an extension of time and without any extension being granted by the Income-tax Officer.

( 1 ) AT the instance of the assessee, Messrs Garg and Company, the income-tax Appellate Tribunal Delhi Bench *b REFERRED TO to this Court under section 256 (1) of the Income-tax Act. 1961, the following questions :

" (1) Whether on the facts and in. the circumstances of the case and on a correct interpretation of the provisions of section 139 (4) of the Income-tax Act, 1961, interest could be legally charged on the assessee as provided in proviso (iii) of section 139 (1) of the Act?

(2) Whether on the facts and in the circumstances of the case, the Tribunal was legally right in holding that subsection (4) of section 139 of the Income-tax Act, 1961 does not require an assessee to apply for extension of time for filing its return of income as a condition precedent for charging of interest as provided in proviso (iii) of section 139 (1) of the Income-tax Act, 1961?"

( 2 ) THE assessment year in question is 1962-63 corresponding to the previous year ending on March 31, 1962. The assessee is a registered firm carrying on business of building contractor. The due date for filing the return of income was November 30, 1962, but it was filed on February 14, 1966. There was, thus, a delay of 38 months. The Income-tax Officer charged interest under section 139 (1) of the Act for the late filing of the return. The Appellate Assistant Commissioner confirmed the said order in appeal. Before the Income-tax Appellate Tribunal in second appeal, the assessee contended that interest could be charged if all the conditions mentioned in section 139 (l) (iii) of the Income-tax Act, 1961 were satisfied. The return in the instant case was filed before the assessment was made under subsection (4) of section 139 and not within the period prescribed in clauses (a) or (b) of section 139 (1) of the Act. No application for extension of time was filed and no extension had been granted by the Income-tax Officer- The liability to pay interest, contended the assessee, therefore, did not arise. It was also contended that there was no specific form of return prescribed under section 139 (4) of the Act. The return that was filed was under section 139 (1 ). The Revenue conceded the proposition that section 139 (4) of the Act did not provide for any specific class of return and that all returns filed under section 139 (4) were in discharge of the obligation to file the return under section 139 (1) and as such provisions of section 139 (1) were applicable to the case. Referring to section 139 (4), the Tribunal was of the opinion that it does not require an application to be made by an assessee for extension of time, and that if the assessce wanted to avail of the benefit of filing the return beyond the period provided for in clauses (a) or (b) of section 139 (1), the provisions regarding payment of interest had to be applied. The Revenue was, therefore, held justified in charging interest for late filing of the return. The relevant portions of section 139 of the Income-tax Act, 1961, read as follows:

"139. Return of Income.- (1) Every person, if his total income in respect of which he is assessable exceeds the maximum amount which is not chargeable to inconic-tax, shall furnish a return of his income xx xx xx during the previous year, m the prescribed form xx xx xx

(A) in the case of every person whose total income, includes any income from business or profession, before the expiry of six months from the end of the previous year or before the 30th day of June of the assessment year, whichever is later;

(B) xx xx xx xx xx

PROVIDED that. on an application made in the prescribed manner, the Income-tax Officer may, in his discretion, extend the date for furnishing the return -

(I)XX xx xx xx

(II)XX xx xx xx

(III) up to any period faring beyond the dates mentioned in clauses (i) and (ii), in which case, interest at nine per cent per annum shall be payable from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the dat