Penalty for late surtax return was unavailable where the Act covered only failure to file, and delay was a factual issue.

Under the Companies (Profits) Surtax Act, 1964, penalty was treated as confined to failure to file a return, not mere late filing, so no penalty was leviable for delay alone. The Tribunal's acceptance of the assessee's explanation for delay, viewed against the surrounding facts, was treated as factual appreciation rather than a pure question of law, so no referable question of law arose on that issue. The reference application therefore failed on both the factual and statutory points.

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Issues: (i) whether the Tribunal's view that the delay in filing the surtax return was a matter of fact and did not give rise to a referable question of law was sustainable; (ii) whether penalty under section 9(a) of the Companies (Profits) Surtax Act, 1964 could be imposed for late filing of the return.

Issue (i): whether the Tribunal's view that the delay in filing the surtax return was a matter of fact and did not give rise to a referable question of law was sustainable.

Analysis: The delay was examined on the surrounding circumstances, including the assessee's explanation, the filing of the income-tax return, the computation of chargeable profits, and the effect of the assessed loss. On that basis, the Tribunal treated the explanation for delay as acceptable and the matter as one turning on factual appreciation rather than a pure question of law.

Conclusion: The issue was concluded against the Revenue and in favour of the assessee; no referable question of law arose on this aspect.

Issue (ii): whether penalty under section 9(a) of the Companies (Profits) Surtax Act, 1964 could be imposed for late filing of the return.

Analysis: The statutory scheme was contrasted with the Income-tax Act, where penalty provisions expressly covered both failure to file a return and late filing. Under section 9 of the Companies (Profits) Surtax Act, 1964, the provision was treated as covering failure to file the return, and not a mere delay in filing. On that footing, the question of penalty for a late return was regarded as academic and unsupported by the Act.

Conclusion: The issue was decided in favour of the assessee; no penalty was leviable merely for late filing of the surtax return.

Final Conclusion: The reference application failed because the controversy was resolved on factual findings and, in any event, the Act did not provide for penalty for late filing alone.

Ratio Decidendi: Where the statute prescribes penalty only for failure to file a return, a penalty cannot be imposed merely because the return was filed late; a matter resting on factual appreciation of the assessee's explanation does not, by itself, generate a referable question of law.

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