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Reference Case No. 5 of 1967, decided on 5th April 1968.

r. 6(2), proviso read with S. 22 (1‑A), Income‑tax Act (XI of 1922)‑Renewal of registration of partnership‑Word "date" occurring in r. 6(2)‑Means date as laid down in clause (a) of S. 22 (1‑A)‑Application for renewal of registration filed on 3‑10‑62 instead of by due date i.e. 15‑7‑62‑Income‑tax Officer not extending time for purpose-- Application, held, time‑barred.

Proviso governs main provision of a statute if intention to that effect clearly expressed.

Afzalul Hoque for Applicant.

M. Hasan for Respondent.

This reference under section 66 (1) of the Income‑tax Act (hereinafter called Act) arises in the following circumstances. The assessee furnished a return setting forth his total income for the accounting period commencing on 1‑1‑1961 and ending on 31‑12‑1961 after due date. The return of the assessee was to be filed by the 15th July 1962 but it was filed on 4‑4‑1963. The Income‑tax Officer condoned the delay in filing the said return. Now, there was another default on the part of the assessee. The application for renewal of registration was submitted on the 3rd October 1962. This application was also to be filed by the 15th July 1962. The assessee claimed that as a result of the condonation of delay in filing the return, it is also similarly entitled to an extension of date of filing the application for renewal of registration. The Income‑tax Officer as well as the Appellate Assistant Commissioner took the view that the application for renewal was to be filed within the time provided in subsection (1A) of section 22 of the Act, that is, in this case on or before the 15th July 1962. The Tribunal, however, took the view that since the time for filing the return was condoned, the assesses was within time in filing the application for renewal of registration. Accordingly the Tribunal has referred the following question for our opinion at the instance of the Commissioner of Income‑tax :‑

"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the application for renewal of registration was filed within time "

I would now read subsection (1A) of section 22.

"22 (1A): The return referred to in subsection (1) shall be filed:‑

(a) where the previous year of an assessee ends at any time between the first day of July and the thirty‑first day of December (both days inclusive), by the fifteenth day of July next following:

(b) in other cases by the fifteenth day of September next following:

Provided that the Income‑tax Officer may on sufficient cause being shown, extend the date for the delivery of the Return in the case of any person or class of persons."

It will, therefore, appear that in this case 15th July 1962 was the date by which the return could be filed in accordance with the provisions just quoted above. The Tribunal however considered Rule 6 of the Income‑tax Rule promulgated by Notification No. 355 (K)/62, dated 27‑3‑1962.

Sub‑Rule (1) (a) of Rule 6 reads as follows ;

"Any firm to whom a certificate or registration has been granted under Rule 5 may apply for the renewal of registra tion for the subsequent year."

Then in sub‑rule (2) of Rule 6, it is provided as follows:

"(2) The application referred to in sub‑rule (1) shall be made after the profits of the firm have been divided among or credited to the accounts of the partners and in the case of loss, after the loss has been debited to the accounts of the partners but not later than the date laid down in clause (a) or clause (b), as the case may be, of subsection (1A) of section 22 for filing the return of total income and total world income."

The Tribunal then referred to the proviso of subsection (1A) of section 22 which reads thus:

"Provided that the Income‑tax Officer may on sufficient cause being shown, extend the date for .the delivery of return in the case of any person or class of person."

After having referred to the proviso to subsection (1A) of section 22, the Tribunal held that the date referred to in sub -rule (2) of Rule 6 quoted above means the date provided in clause (a) or any date that may be extended by reason of the proviso added to subsection (1A) of section 22.

We are unable to agree with this conclusion of the Tribunal for, it is seen that it is laid down in sub‑rule (2) of Rule 6 that the application referred to in sub‑rule (1) relating to renewal of registration shall not be filed "later than the date laid down in clause (a) or clause (b) as the case may be, of subsection (1A) of section 22 for filing the return of the total income or total world income." It is therefore clearly provided that the date contemplated in sub‑rule (2) is the date contemplated in clause (a) or (b) of subsection (1A) of section 22 of the Act and not the date extended by an officer entitled to do so by reason of a proviso under certain circumstances. Had that been the inten tion of the Legislature, it would have clearly laid down that it would not be later than the date laid down in clause (a) or (b) or a date extended by exercise of powers conferred by the proviso to subsection (1A) of section 22 of the Act. In the absence of any such provision, we are of opinion that the word "date" occurring in sub‑rule (2) of rule 6 means the date as laid down in clause (a) of subsection (1A) of section 22 and not any extended date. This in our opinion would be Legislating in this behalf. It is true a proviso governs the main provision of a statute but to govern the main provision intention is to be clearly expressed. By this proviso, the main provision, namely, subsection (1A) of section 22 is not at all governed by any other manner except that a power is given to a certain officer to extend the date in certain cases, but when the time referred to in the main provision is mentioned in a rule, the date mentioned is the date provided by law, and not any notional extension thereof. It can however be mentioned here that there is a proviso to sub- rule (2) as well which empowers the Income‑tax Officer to extend time for filing such application if the assessee is prevented by any sufficient cause. If the Tribunal had taken recourse to this proviso to give relief to the assessee in view of the mistake if committed, there would be 'no legal bar. But the question referred to is as to whether the Tribunal's view that the applica tion for renewal of registration was filed within time was correct. That being so, we are constrained to express our opinion in the negative.

For the reasons stated above, the question referred to us is answered in the negative. In view of the facts and circumstances of the case we leave the parties to bear their own costs.

‑I agree.

S.Q. Reference answered in the negative.

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