Madhya Pradesh H.C : Whether, the Tribunal was justified in law in directing the ITO to entertain the application in Form No. 6, when such an application was not signed by a person who was authorised to sign it ?

High Court Of Madhya Pradesh

CIT vs. Bhilai Mahila Samaj

Sections 139, 140, Rule 13

B.C. Verma, Actg. C.J. & D.M. Dharmadhikari, J.

Misc. Civil Case No. 193 of 1985

29th August, 1990

Counsel Appeared

B.K. Rawat, for the Revenue : B.L. Nema, for the Assessee

B.C. VERMA, ACTG. C.J.:

This is a reference under s. 256(1) of the IT Act, 1961. The following question has been referred to this Court for opinion : “Whether, the Tribunal was justified in law in directing the ITO to entertain the application in Form No. 6, when such an application was not signed by a person who was authorised to sign it ?”

The assessee, Bhilai Mahila Samaj, Bhilai, is a charitable trust and is being assessed to tax in the status of an association of persons. Return was filed on 31st Aug., 1978. Exemption was claimed under s. 11(1) for Rs. 45,000, as the amount was applied for charitable or religious purposes in India during the previous year. The return so filed, according to the provisions of s. 139 of the Act, was due on 30th June, 1978. An application in Form No. 6 for extension of time for filing the return up to 31st Aug., 1978, was duly filed on 30th June, 1978.

The assessee did not receive any intimation regarding the disposal of that application and, therefore, thought that the application was allowed. The ITO pointed out to the assessee that the application in Form No. 6 for extension of time was signed by the person not entitled to sign the return of income, as provided under s. 140 of the IT Act, 1961. The assessee tried to explain that, at the material time, the person authorised was out of station and, therefore, the application was signed by counsel for the assessee. The ITO treated that application in Form No. 6 as invalid and, therefore, took no cognizance of that application. The AAC allowed the assessee’s appeal and held that the ITO was incorrect in ignoring that application. The Department filed an appeal before the Tribunal against the order of the AAC. The Tribunal held that, considering the purpose of the application in Form No. 6, the ITO was not justified in ignoring the assessee’s application for extension of time. The appeal of the Department was dismissed. On an application made, the Department asked for a reference to this Court. The Tribunal has referred the aforesaid question for the opinion of this Court. Sec. 139 of the IT Act, 1961, requires the return of income to be filed by a person whose income during the previous year exceeded the maximum amount which is not chargeable to income-tax. Time is prescribed for filing such return. A provision has, however, been made in that section itself for extension of time for filing a return. Sec.140 requires that the return shall be signed and verified by the person in the manner laid down. The application for extension of time for furnishing a return under s. 139 of the IT Act, 1961, is to be made in Form No. 6 which is prescribed under r. 13 of the IT Rules, 1962. Foot note No. 2 to this form requires that the application for extension of time should be signed by the person who is entitled to sign the return of income as provided under s. 140. Thus, it prima facie appears that the application for extension of time in the prescribed form is to be signed by the person authorised to sign the return. The application, however, requires no verification. However, in our opinion, the mere fact that the application was not so signed should, by itself, not entail the dismissal of that application. It shall only mean an irregularity which is curable. To take a view otherwise would be putting a premium on technicality. This apart, the enabling provision to s. 139 itself does not require that the application should be signed by the person authorised to sign and verify the return and r. 13 of the Rules only says that the application has to be in the prescribed form. It is only in the notes appended to that form that one finds that the application in that form has to be signed by the person entitled to sign the return of income. This scheme by itself makes it manifest that the mere irregularity in signing the application will not itself invalidate the application and the irregularity can well be cured. The Tribunal, was, therefore, justified in holding that the ITO was not correct in rejecting the application for extension of time merely on the ground that it was, at the time of presentation, not signed by the person authorised to sign the return. Our answer to the question referred, therefore, is against the Department and in favour of the assessee. We hold that the Tribunal was justified in law in directing the ITO to entertain the application in Form No. 6, when such an application was not signed by a person who was authorised to sign it. The reference is answered accordingly. No order as to costs.

[Citation : 187 ITR 604]

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