Belated return filed before assessment does not attract penalty under the Companies (Profits) Surtax Act absent statutory non-furnishing.

Penalty under the Companies (Profits) Surtax Act was not leviable merely because the return was filed after the prescribed due date, where it was furnished before assessment was completed. Section 5(3) permits a belated return to be filed any time before assessment, and section 9 penalises only a failure, without reasonable cause, to furnish the return required under section 5. Read together, these provisions mean that a return filed before assessment does not amount to non-furnishing of the return so as to attract penalty. The Tribunal's deletion of penalty was therefore upheld and the reference was answered against the revenue.

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Issues: Whether penalty under section 9 of the Companies (Profits) Surtax Act, 1964 is leviable merely because the return was filed after the statutory due date, where the return was nevertheless furnished before the assessment was made.

Analysis: Section 5(1) requires filing of the return by the prescribed date, but section 5(3) expressly permits an assessee who has not filed the return within the original time to furnish it at any time before assessment is made. Section 9 authorises penalty only where the Assessing Officer is satisfied that the assessee, without reasonable cause, failed to furnish the return required under section 5. Reading these provisions together, a return filed before assessment cannot be treated as a failure to furnish the return as required by section 5, and the statute does not create a separate penalty merely for late filing when the return is filed before completion of assessment.

Conclusion: Penalty was not leviable on the assessee for filing the return after the due date but before the assessment was completed.

Final Conclusion: The reference was answered against the revenue and the Tribunal's view deleting the penalty was upheld.

Ratio Decidendi: Where the statute permits a return to be filed before assessment is made, a return so filed does not amount to a failure to furnish the return so as to attract penalty absent the statutory precondition of non-furnishing without reasonable cause.

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