JUDGMENT B.P. Jeevan Reddy, C.J.
1. This writ petition is filed challenging the order of the Commissioner of Income-tax, refusing to waive the interest levied by the Income-tax Officer under Section 139(8). The first petitioner is a registered partnership firm white petitioners Nos. 2 to 7 are its partners,
2. For the assessment year 1973-74, the return had to be filed on or before July 31, 1973. The return was, however, filed on June 12, 1974. For the assessment year 1974-75, the return was due on or before July 31, 1974, but it was actually filed on October 1, 1975. On account of the late filing of the return, interest was levied under Section 139(8) of the Act. It appears that penalty proceedings were also initiated in this behalf. We are, however, concerned only with the levy of interest under Section 139(8) in this writ petition.
3. The petitioner applied to the Income-tax Officer for waiving the said interest under Rule 117A of the Income-tax Rules. The Income-tax Officer waived the interest for the period ending on October 31, 1973, in so far as the assessment year 1973-74 was .concerned. In all other respects, the waiver application was rejected. Then the petitioner approached the Commissioner under Section 273A of the Act.
4. The petitioner's case before the Commissioner was that he could not file the returns in time inasmuch as the sales tax authorities conducted a raid on his premises on July 19, 1973, and took away all the account books and other documents. These documents were returned to him only on December 9, 1974, and hence the delay. This explanation was rejected by the Commissioner with reference to the proceedings of the Sales Tax Officer (annexure 6 to the writ petition) which shows that the books were directed to be returned to the petitioner even on October 15, 1973, but the petitioner itself requested the Sales Tax Officer to keep the books impounded and seized till such time that certain entries were explained properly by the assessee. The books were ultimately taken back by the petitioner only on December 9, 1974. The Commissioner also referred to the fact that the return for the assessment year 1973-74 was filed even in June, 1974. He rejected the petitioner's explanation that the said endorsement of the Sales Tax Officer is a make-believe affair and that the petitioner was obliged to accede to that proceeding under fear of the Sales Tax Officer. The Commissioner observed that there is absolutely no material to support the petitioner's version. He, therefore, preferred to believe the recitals contained in the order (annexure-5). Accordingly, the Commissioner rejected the application. So far as the assessment year 1973-74 is concerned, it may be noticed that the petitioner filed his return in June, 1974, while, according to him, the books were returned only in December, 1974. It is now explained that all that the petitioner required to verify from the books was the closing stock and that he did so in June, 1974, and filed the return, But there was nothing which prevented him from inspecting the books earlier. There is no material to show that he requested for inspection but was refused by the sales tax authorities. Moreover, as rightly observed by the Commissioner, except the averment of the petitioner, there is nothing on record to disbelieve the recitals in the order of the Sales Tax Officer (annexure-6). The said order clearly shows that the books were returned as far back as October, 1973, but the petitioner himself chose to keep the books impounded with the Department and took them back only in December, 1974. So far as the assessment year 1974-75 is concerned, it may be noticed that, the return was filed on October 1, 1975, when the books were returned even according to the petitioner in December, 1974. Therefore, the delay has remained unexplained.
5. It is now contended by Sri Gupta, learned counsel for the petitioner that, on the very same facts, the Tribunal has deleted the penalty levied under Section 271(1)(a). The order of the Tribunal dated November 16, 1983, is placed before us. We find from a perusal of the order that it pertains to 1974-75 and that, for that year, the assessee had applied for extension of time to file the return up to October 15, 1975. The main ground for deleting the penalty appears to be that two different returns can be filed for two different periods and that, for the first period, the Income-tax Officer himself deleted the penalty and there was no reason why the penalty for the second part of the year also cannot be deleted. The facts which were placed before and considered by the Commissioner in this case were not placed before and considered by the Tribunal. It must also be noticed that time was extended by the Income-tax Officer for filing the return for that assessment year which may save the petitioner from penalty but would not save him from levy of interest under Section 139(8) of the Act. Moreover, we cannot read the said order into the order of the Commissioner. The order of the Tribunal is subsequent to the order of the Commissioner.
6. For the above reasons, the writ petition, accordingly, fails. No costs.