Sabyasachi Mukharji, J.
1. In this application under article 226 of the Constitution, I am concerned with the assessment year 1963-64. Under Section 139(2) of the Income-tax Act, 1961, the time to file return by the assessee expired on the 30th September, 1963. Under Sub-section (4) of Section 139 of the Act, however, the assessee had the privilege to file the return at any time before the completion of the assessment, that is to say, up to 31st March, 1968. In the meantime, on the 21st March, 1966,notice under Section 148 of the Act was issued. The assessment had been completed in the meantime.
2. The question is whether the assessment, which was completed, had been made pursuant to the return filed pursuant to the notice under Section 148 of the Act or not. On behalf of the petitioner it was contended that notice under Section 148 of the Act was without jurisdiction because, unless the time mentioned in Sub-section (4) of Section 139 expired, there was no failure on the part of the assessee to file the return under Clause (a) of Section 147 of the Act and, in that view of the matter, the Income-tax Officer had no jurisdiction.
3. In my opinion, that is not the correct way of reading the section. Subsection (2) of Section 139 of the Act imposes an obligation on the assessee to file the return within the time mentioned. Failure to file the return within the time mentioned in Section 139(2) of the Act attracts the jurisdiction of Clause (a) of Section 147 of the Act. The fact that there is an additional privilege given to the assessee under Sub-section (4) of Section 139 of the Act, in my opinion, would not defeat the right of the Income-tax Officer to issue the notice on the failure of the assessee to file the return within the time mentioned under Sub-section (2) of Section 139 of the Act. In the premises, I am of the opinion that the impugned notice in this case was issued properly and the return was filed in pursuance of the said notice.
4. For the reasons mentioned above, this application fails and the rule .is accordingly discharged.
5. There will be no order as to costs.
6. Interim order is vacated.
7. No affidavit has been filed on behalf of the respondents and the allegations made by the petitioner are not agreed to.
8. The amount of Rs. 2,916 deposited as security lying with the Allahabad Bank may be handed over to the authority concerned for appropriation against the dues for the assessment year 1963-64.