Penalty for late surtax return barred when return is filed before assessment under the statutory scheme.

Penalty under section 9 of the Companies (Profits) Surtax Act, 1964 was not leviable where the return of chargeable profits, though filed after the prescribed date, was furnished before assessment. Section 5(3) expressly allowed a delayed return to be filed any time before assessment, so such filing could not be treated as a failure to furnish the return required under section 5. Because section 9 penalised only a failure, without reasonable cause, to furnish the required return and contained no separate sanction for mere late filing, the statutory basis for penalty was absent.

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Issues: Whether penalty under section 9 of the Companies (Profits) Surtax Act, 1964, could be levied merely because the return of chargeable profits was filed after the prescribed date but before assessment was completed.

Analysis: Section 5(1) required the return to be filed by the prescribed date, but section 5(3) expressly permitted an assessee who had not furnished the return within time to furnish it at any time before assessment was made. On that scheme, a return filed before assessment could not be treated as a failure to furnish the return as required under section 5. Section 9 authorized penalty only where there was a failure, without reasonable cause, to furnish the return required under section 5, and it contained no separate penal provision for mere late filing where the return was accepted and assessment was completed on that very return. The statutory language therefore did not support imposition of penalty in such a case.

Conclusion: Penalty under section 9 was not leviable on the facts, because the return had been filed before assessment and there was no failure to furnish the return as required under section 5.

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