Obul Reddy, J.
1. The question that arises in these writ petitions is whether the petitioner is liable to pay interest on the income-tax when he has not voluntarily filed the returns but filed them on receipt of a notice served upon him under Section 148 of the Income-tax Act (hereinafter referred to as ' the Act') by the Income-tax Officer.
2. The facts necessary for determination of the question involved are these: The petitioner is a partnership firm known as M/s. Progressive Engineering Company, Gudivada,'represented by its managing partner. The petitioner-firm did not file returns for the assessment years 1968-69 and 1969-70 within the time allowed under Section 139(1) of the Act. The Income-tax Officer issued a notice under Section 148 of the Act stating that the income chargeable to tax for the assessment years in question has escaped assessment within the meaning of Section 147 of the Act. The petitioner-firm was asked to submit returns for the said two years within 30 days from the date of receipt of the notice. The petitioner then filed returns for both the assessment years on January 16, 1971, and the Income-tax Officer completed the assessment on January 29, 1971, and charged interest of Rs. 5,256 for the assessment year 1968-69 and Rs. 5,059 for the assessment year 1969-70 on the tax assessed. The petitioner then went up in appeal unsuccessfully against the levy of interest. The Appellate Assistant Commissioner dismissed the appeal on the ground that the firm had no right of appeal against the levy of interest under Section 139(1) of the Act. It is the dismissal of the appeals by the Appellate Assistant Commissioner that has led to the filing of the writ petitions.
3. Mr. Y. V. Anjaneyulu, the learned counsel appearing for the petitioner, strenuously contended that where the returns are not filed voluntarily within the time allowed under Section 139(1) of the Act but pursuant to a notice issued by the assessing authority, the penal provision, i.e., Clause (iii) of the proviso to Section 139(1) of the Act, cannot be invoked and in support of his contention he has relied upon a decision of this court in Kishanlal Haricharan v. Income-tax Officer. Section 139(1) of the Act casts a duty upon every person, if his total income or the total income of any other person in respect of which he is assessable under the Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, to furnish a return of his income or the income of such other person during the previous year in the prescribed manner. Admittedly, the petitioner had not filed his returns showing the total income assessable under the Act for the previous two years in question nor did he make an application either under Clause(i) or Clause (ii) of the proviso to Section 139(1) of the Act. It is only when a notice was issued informing him that the income chargeable to tax for the two assessment years had escaped assessment under Section 147 that he chose to file the returns hoping presumably that he can escape the levy of penalty.
4. Sub-section (4) of Section 139 lays down :
'(4)(a) Any person who has not furnished a return within the time allowed to him under Sub-section (1) or Sub-section (2) may, before the assessment is made, furnish the return for any previous year at any time before the end of the period specified in Clause (b), and the provisions of Clause (iii) of the proviso to Sub-section (1) shall apply it every such case.'
5. Clause (iii) of the proviso to Section 139(1) reads:
'Up to any period falling 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 date of the furnishing of the return.......'
6. The case on hand is one where returns have been filed beyond the dates mentioned in Clauses (i) and (ii) of the proviso to Section 139(1) and, therefore, Sub-section (4) of Section 139 is automatically attracted. The mere fact that the petitioner filed the returns pursuant to the notice issued to him under Section 148 threatening to assess him under Section 147 does not make any difference, for what has to be seen is whether he has filed the returns beyond the dates mentioned in Clauses (i) and (ii) and not whether he applied for extension of time under Clauses (i) and (ii) and failed to fur-nish the returns within the time allowed either under Clause (i) or Clause (ii) of the proviso. The Division Bench in the case cited above was not dealing with a case which falls under Sub-section (4) of Section 139. That was acase where no returns were at all filed even though the Income-tax Officer issued a notice to the petitioner therein under Section 139(2) calling upon him to submit a return before a particular date. Therefore, the case where no returns were filed stands on a different footing from a case where returns were filed, pursuant to a notice issued by the Income-tax Officer under Section 148. There is nothing in the language of Clause (iii) of the proviso to Section 139(1) or in Sub-section (4) of Section 139 to indicate that where returns are filed beyond the time specified in Clauses (i) and (ii) of the proviso pursuant to a notice issued by the Income-tax Officer, Clause (iii) of the proviso is not applicable. All that the proviso says is that it is open to the Income-tax Officer in his discretion to extend time for furnishing the returns as provided in Clauses (i) and (ii). But Clause (iii) of the proviso has to be read with Sub-section (4) of Section 139 of the Act. If Clause (iii) of the proviso is read with Sub-section (4) of Section 139, then the position becomes clear that any person who has not furnished returns within the time allowed to him under Sub-section (1) will come within the mischief of Clause (iii) of the proviso to Section 139(1). Therefore, the fact that no application was made by the petitioner for extension of time is not relevant at all in view of Sub-section (4) of Section 139(1) of the Act. That is how the present case differs from the one in Kishanlal Haricharan v. Income-tax Officer : 82ITR660(AP) .
7. It is, however, open to the petitioner to move the Income-tax Officer under Rule 117A for reduction or waiver of interest payable under Section 139.
8. For the reasons recorded, the writ petitions are dismissed with costs. Advocate's fee Rs. 100 in each.