order of AAC was communicated to assessee on 1st Feb., 1983. appeal should, therefore, have been filed on 2nd April, 1983. assessee sent appeal papers by registered post on 26th March, 1983, but were received in office of Tribunal on 6th April, 1983. delay has, therefore, been caused due to transmission of papers by post. We, therefore, condone it. return for above assessment year was due by 30th Oct., 1976 including period extended by ITO. It was, however, filed on 9th Sept., 1977. There was, thus, delay of ten complete months. For this delay, ITO initiated penalty proceedings under s. 271(1)(a) of IT Act, 1961. assessee vide notice dt. 1st Sept., 1980 was required to show cause why penalty under above section be not levied. date of hearing fixed was 16th Sept., 1980. On this date, neither anybody attended nor any written explanation was filed. ITO, therefore, presumed that assessee has no reasonable explanation to offer in its defence and consequently did not object to imposition of penalty. He finally imposed penalty of Rs. 11,334. assessee appealed to AAC. It was claimed before him that return could not be filed as Munim of assessee was ill. It was further claimed before him that no other Munim could be engaged as main partner was busy in litigation, which had come up on death of his grand father amongst successors. AAC did not find these reasons convincing. He also observed that in case there were compelling reasons, proper course for assessee was fairly allowed upto 30th Oct., 1976. In his opinion, therefore, delay beyond 30th Oct., 1976 was without reasonable cause. He, thus, confirmed penalty. assessee is now in appeal before us. first contention of ld. counsel for assessee before us was that present case was covered by principle laid down by Hon ble Supreme Court in case of CIT vs. Chandra Sekhar (1985) 44 CTR (SC) 110: (1985) 151 ITR 433 (SC). He submitted that assessee had already been subjected to interest under s. 139(8) of Act amounting to Rs. 8,470. According to him, once interest had been charged under above section, it should be deemed that ITO had allowed extension of time and, therefore, no penalty was leviable, which was also principle laid down in above case. His second and alternate submission was that, in any case, even on facts of case no penalty was leviable. On behalf of Department, it was submitted that above decision of Supreme Court applied to provisions of s. 139(1) of Act as they stood before its amendment by Taxation Laws (Amendment) Act, 1970 w.e.f. 1st April, 1971 and that above principle had no application to case of assessee, which related to asst. yr. 1976-77. About merits of case, he relied on decision of Bombay High Court in Vithaldas Jayawant vs. CIT 1978 CTR (Bom) 293: (1978) 113 ITR 866 (Bom). We have carefully considered submission placed before us. We agree with submission of ld. Departmental Representative that decision of Bombay High Court in CIT vs. Chandra Sekhar (supra) has no application to asst. yr. 1976-77. proviso to s. 139(1) and sub-s. (8) of above section as they stood at relevant time read as under: Proviso to sub-s. (1) "Provided that, on application made in prescribed manner, ITO may, in his discretion, extend date for furnishing return. (i) in case of any person whose total income includes any income from business or profession previous year in respect of which expired on or before 31st day of December of year immediately preceding assessment year, and in case of any reason referred to in cl. (b), up to period not extending beyond 30th day of September of assessment yet without charging any interest; (ii) in case of any person whose total income includes any income from business or profession previous year in respect of which expired after 31st day of December of year immediately preceding assessment year, upto 31st day of December of assessment year without charging any interest; and (iii) up to any period falling beyond dates mentioned in cls. (i) and (ii), in which case interest at nine per cent per annum shall be payable from 1st day of October or 1st day of January, as case may be, of assessment year to date of furnishing of return (a) in case of registered firm or unregistered firm which cl. (b) of s. 183, on amount of tax which would have been payable if firm had been assessed as unregistered firm, and (b) in any other case, on amount of tax payable on total income; reduced by advance tax, if any paid or by any tax deducted at source, as case may be." Sub-s. (8) "(8) Notwithstanding anything contained in cl. (iii) of proviso to sub-s. (1), ITO may, in such cases and under such circumstances as may be prescribed, reduce or waive interest payable by any person under any provision of this section." It were these provision, which had come up for interpretation by Hon ble Supreme Court. In this case, Tribunal had held that as ITO had levied interest upto date of filing of returns, it must be presumed that ITO had extended time for filing returns after satisfying himself that it was case for extension of time. This presumption was founded on principle that officer entrusted with judicial or quasi-judicial duty must be presumed to have discharged his duties in proper and bona fide manner. This presumption was approved by Hon ble Supreme Court. After amendment of above sections, above presumption cannot be drawn. This is clear from proviso to sub-s. (2) of s. 139 and sub-s. (8)(a) of s. 139 as they applied to assessment year under appeal. We quote below these sections: "Sec. 139(1) Every person, if his total income or total income of any other person in respect of which he is assessable under this Act during previous year exceeded maximum amount which is not chargeable to income-tax, shall furnish return of his income or income of such other person during previous year in prescribed form and verified in prescribed manner and setting forth such other particulars as may be prescribed. (a) in case of very person whose total income, or total income of any other person in respect of which he is assessable under this Act, includes any income from business or profession, before expiry of four months from end of previous year, nor where there is no there one previous year, from end of previous year which expired last before commencement of assessment year, or before 30th day of June of assessment year, whichever is later: (b) in case of every other person, before 30th day of June of assessment year; Provided that, on application made in prescribed manner, ITO m y , in his discretion, extend date for furnishing return, and notwithstanding that date is so extended, interest shall be chargeable in accordance with provisions of sub-s. (8)." "(2) In case of any person who in ITO s opinion, is assessable under this Act, whether on his own total income or on total income of any other person during previous year, ITO may, before end of total relevant assessment year, issue notice to him and serve same upon him requiring him to furnish, within thirty days from date of service of notice, return of his income or income of such other person during previous year, in prescribed form and verified in prescribed manner and setting forth such other particulars as may be prescribed: Provided that, on application made in prescribed manner, ITO m y , in his discretion, extend date for furnishing return, and, notwithstanding that date is so extended, interest shall be chargeable in accordance with provisions of sub-s.(8)." "(8) (a). Where return under sub-s. (1) or sub-s. (2) or sub-s. (4) for assessment year is furnished after specified date or is not furnished, then whether or not ITO has extended date for furnishing return under sub-s. (1) or sub-s. (2), assessee shall be liable to pay simple interest at twelve per cent per annum, reckoned from day immediately following specified date to date of furnishing of return or, where no return has been furnished, date of completion of assessment under s. 144, on amount of tax payable on total income as determined on regular assessment as reduced by advance tax, if any, paid, and any tax deducted at source: Provided that ITO may in such cases and under such circumstances as may be prescribed, reduce or waive interest payable by any assessee under this sub-section." above section clearly lay down that interest under s. 139(8) will be chargeable notwithstanding that ITO in his discretion, extended date for furnishing return. This, therefore, makes it clear that charging of interest does not depend upon discretion by ITO in extending date for submission of returns. It is independent of such discretion. It cannot, therefore, now be pleaded after original sections have been amended or substituted by new sections, as quoted above that charging of interest automatically means that ITO has extended date for submission of return and, therefore, penalty under s. 271(1)(a) is not liveable. In our opinion, principle laid down by Hon ble Supreme Court in cited case is not available to assessee for asst. yr. 1976-77, which is now in apple before us. We now deal with alternate contention of ld. counsel for assessee. We have already stated above that assessee did not appear before ITO nor did it file any written explanation in its defence in reply to show cause notice issued by ITO. It was only before AAC that it was stated that return could not be filed due to illness of Munim or because main partner was busy in litigation. AAC rejected it as not reasonable ground. In they could not be treated as unreasonable. However, whether they did or did not exist, was not decided by AAC with reference to any evidence. W e are of opinion that AAC should also have allowed ITO opportunity of examining these reasons. We, therefore, set aside order of AAC and direct him to go into evidence showing illness of Munim and engagement of main partner in litigation, allow opportunity to ITO of looking into that evidence and then redecide issue in accordance with law. While doing so, he will also keep in view principle laid down by Bombay High Court in case of Vithaldas Jayawant (supra). In result, appeal is partly allowed. *** BALLABH DAS KANHAIYA LAL v. INCOME TAX OFFICER