B.S. Dhillon, J.
1. This order will dispose of I.T. Cases Nos. 57 and 58 of 1976. I.T. Case No. 57 relates to the assessment year 1968-69, whereas I.T. Case No. 58 pertains to the assessment year 1969-70,
2. The assessment years concerned in these cases commenced on 1st April, 1968, and 1st April, 1969. The returns of total income under Section 139(1) of the I.T. Act, 1961 (hereinafter referred to as 'the Act'), had to be filed up to 30th June, 1968, and 30th June, 1969, respectively, but the same were filed only on 17th March, 1973, in response to the notice under Section 148 of the Act. The assessments were completed by the ITO on the basis of returns which were filed by the assessee. In the assessment, the assessee was charged interest for the period from 1st April, 1968, to16th March, 1973, on the ground that the returns due under Section 139(1) of the Act had been filed after delay.
3. The assessee moved separate applications on 20th June, 1973, seeking the cancellation of the orders of levy of interest in the two assessments made by the ITO under the provisions of Section 154 of the Act. The said applications were dismissed by the ITO and appeals against the said order were also dismissed by the AAC.
4. On appeal, the Tribunal held that neither an order of extension of date for furnishing the return had been made by the ITO, nor had thereturns in question been furnished within the periods in Clause (b) of Section 139(4)as contemplated under Section 139(4)(a) of the Act and, consequently, theinterest was not leviable. The application filed by the revenue with theprayer that the following questions which, according to the revenue, arequestions of law, be referred to this court, has been dismissed by theTribunal in both the cases:
'(i) Whether, on the facts and in the circumstances of the case, theTribunal was correct in ignoring the fact that the return was filed afterthe issue of notice under Section 148 of the Income-tax Act, 1961, whichcontained all the requirements of a notice, issued under Section 139(2),including the provision for charging of interest for delay in the filing of thereturn
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the question involved in this case regarding the charging of interest was not a debatable point and hence beyond the scope of Section 154 of the Income-tax Act, 1961 ?'
5. The petitioner has preferred these cases with the prayer that the said questions, which are questions of law, be got referred to this court for its opinion.
6. The learned counsel for the revenue cites a decision of the Kerala HighCourt in P. A. Abdul Muthalif Rowther v. ITO : 102ITR694(Ker) , to con- tend that the return filed in response to a notice under Section 148 of the Act hasto be considered as a return under Section 139 of the Act and even if there wasno extension of time granted by the ITO, the assessee is still liable to payinterest in accordance with the provisions of Sub-section (8) of Section 139 of the Act.There is no representation on the side of the assessee. Whether the returnsfiled by the assessee are to be taken as returns under Section 139(1)(a) of theAct and even if no extension of time had been granted by the ITO, whether the interest is leviable under Sub-section (8) of Section 139 of the Act is certainlya question of law. We are unable to agree with the view of the Tribunalthat not question of law arises out of its order by which the appeal of theassessee was accepted.
7. We, accordingly, allow these petitions and direct the Tribunal to referthe above said question of law to this court in both these cases. Sincethere is no representation on the other side, there will be no order asto costs.