S. N. ROTHO, A.M.: This appeal filed by Department and cross objection filed by assessee are heard together and disposed of by this common order for sake of covenience. assessee is Pvt. Ltd. company. assessment year involved in this appeal is 1978-79. return for this year was due on 31st July, 1978. assessee filed return on 31st July 1980. assessee did not pay "self- assessment tax" under s. 140A of Act before filing return. That tax was paid on 22nd Aug. 1980. ITO asked assessee to show cause as to why it should not be penalised under s. 140A (3). assessee replied that it could not pay tax earlier due to lack of funds. ITO did not find above explanation to be satisfactory. He imposed penalty under s. 140A (3) of Act. quantum of penalty was calculated by him at 2 per cent of tax payable. However, he took period of default to be 24 months i.e., from 31st July 1980 to 22nd Aug., 1980. It is to be noted that ITO proceeds on basis that default under s. 140A (3) started from date on which filing or return become due. assessee appealed to CIT (A) and contended that penalty imposed was not justified. CIT (A) considered that provisions of s. 140A (3) are vague and so determination of quantum of penalty prescribed therein was impossible. He observed that section does not speak definitely as to what was starting point of default and so it was case of Casus Omissus. He was aware of fact that section has to be read as whole in order to understand intention of legislature. He says that he looked through whole statute but could not find any light. Hence, he was forced to come to conclusion that this is case of casus omissus, which means that s. 140A(3) is unworkable and has to be ignored. He has also referred to fact that if two interpretations are possible then one in favour of assessee is to be preferred. But he though that such preference in this case will discriminate against those who filed returns earlier as, according to him, those who file return later will pay penalty under s. 140A (3) for smaller period (assuming that tax was ultimately paid on same date by both type of assessee. In this view of matter, he held s. 140A (3) to be unworkable and cancelled penalty on that ground alone. Consequently, he did not consider explanation of assessees on merits. Sri. G. P. Nanda, ld. Representative for Department urged before us that CIT (A) erred in his decision. According to him CIT (A) cancelled penalty on wrong view of meaning of section. In this connection, he referred to decision in case of CIT vs. National Taj Traders, (1980) 14 CTR (SC) 348: (1980) 121 ITR 535 (SC) wherein it has been held that Casus Omissus should not be readily inferred and for that purpose all parts of statute must be considered together. Sri. R. N. Bajoria, ld. Representative for assessee drew our attention to cross objection filed by assessee wherein ground has been taken to effect that CIT (A) should have cancelled penalty on ground that explanation given by assessee for not paying tax earlier should have been accepted as satisfactory. He stated that filing of cross objection was delayed by about 8 days. He prayed for condonation of delay on ground that there were disturbance in city during that period. We have carefully considered issue raised in this appeal. According to assessee, default under s. 140A(3) starts from day return was filed. According to ITO that default starts from date on which filing of returns becomes due. CIT (A) has opined that said liability arises on last day of previous year itself, However, he has cancelled penalty on ground that s. 140A(3) is unworkable. issue that arises in this appeal is as to whether s. 140A(3) as introduced by Taxation Laws (Amendment) Act, 1975 w.e.f. 1st April 1976 is workable or is case of casus omissus. Before we consider basic question raised in this appeal, we feel it expedient to keep in mind certain well-known principles of construction of statutes as laid down by Supreme Court from time to time. rules relevant for our purpose may be briefly stated. In case of CIT vs. Teja Singh (1959) 35 ITR 408 (SC) it has been said that construction which defeats very object ought to be achieved by legislature must be avoid. In case of S. V. Kondaskar vs. V. M. Deshpande 1972 CTR (SC) 141: (1972) 83 ITR 92 (SC) it is observed that provision of statute should not be interpreted in way to produce startling results not intended by legislature. In case of National Taj Traders (supra) it has been held that Court can supply omission in order to avoid manifestly absurd result that could never have been intended by legislature. In case of K. L. Vardarajan vs. CIT 1975 CTR (SC) 1: (1975) 98 ITR 182 (SC) it has been observed that legislature cannot be taken to have intended to create anomaly which, in our opinion, includes omission. In other words, legislature would not create omission in provision of statute. If intention of legislature is otherwise clear, then apparent omission can be modified and set right by Court. Similarly, in case of K. P. Varghese vs. ITO (1981) 24 CTR (SC) 358: (1981) 131 ITR 597 (SC) it has been held that Courts can modify language used in order to give effect to clear intention of legislature and to prevent mischief for eradication of which provision has been enacted. Keeping above principles in mind, we now read s. 140A which runs as below: "140A (1) Where any tax is payable on basis of any return required to be furnished under s. 139 or s. 148 after taking into account amount of tax, if any, already paid under any provision of this Act, assessee shall be liable to pay such tax before furnishing return and return shall be accompanied by proof of payment of such tax. (2) After regular assessment under s. 143 or s. 144 has been made, any amount paid under sub-s. (1) shall be deemed to have been paid towards such regular assessment. (3) If any assessee fails to pay tax or any part thereof in accordance with provisions of sub-s. (1), ITO may direct that sum equal to two per cent of such tax or part thereof, as case may be, shall be recovered from him by way of penalty for every month during which default continues: Provided that before levying any such penalty, assessee shall be given reasonable opportunity of being heard." Sub-s. (1) says that assessee shall be liable to pay such tax before furnishing return. Sub-s(3) says that penalty is to be calculated for every month during which default continues. question that is raised in this appeal is as to when aforesaid default starts. For getting answer to that question one should remember history of s. 140A which first came into statute book w.e.f. 1st April 1964. Before that there was penalty for not filing return within prescribed time. This is penalty under s. 271(1)(a) of Act. default under this section starts from date from which return becomes due and ends on date on which return is filed. Then s. 140A comes into play. Once return is filed, default under s. 140A (3) starts. It ends on day when tax under s. 140A (1) is paid. (It is true that date on which assessment is made terminated both defaults and so it is not necessary for our present purpose to refer to that date). scheme of Act is quite clear. assessee can delay in making payment of tax due by him to Exchequer either by delaying filing of return or by delaying payment of admitted tax as per return even after filing of return. In either case intention is to penalise assessee for having wrongfully withheld legitimate tax due to be paid. Sec. 271(1) (a) is intended to meet former contingency. But, there was no provision in statute to meet second contingency. It was to avoid this mischief that s. 140A was enacted on 1st April. 1964 and was later amended w.e.f 1st April, 1976. Thus it is clear that legislature intended to prevent second mischief stated above. In other words, s. 140A takes over when s. 271(1) (a) ceases to apply. intention of both sections is to ensure early realisation of admitted tax due to Government. In case of Sodra Devi vs. CIT (1957) 32 ITR 615 (SC) Supreme Court has quoted with approval rule in Heydon s case (1584) 3 Co. Rep 7a: 76 ER 637 which says that provision in stature should be interpreted in order to further remedy laid down by legislature to prevent mischief that existed prior to enactment. Hence, we find that CIT (A) was not correct in saying that intention of legislature was not evident from statute. As stated earlier intention was clear, namely, to prevent second mischief. All rules of interpretation laid down by Supreme Court in aforesaid cases direct to interpret provision under consideration in way that it is workable; in way to prevent mischief that was prevalent prior to enactment; in way to give effect to clear intention of legislature. We have no doubt in mind as to that intention which we have already stated earlier. If both ss. 271(1)(a) and 140A are taken together, there is no discrimination of type apprehended by ld. CIT (A). Thus we hold that this is not case of Casus Omissus as has been stated by CIT (A). In our opinion, default under s. 140A (3) starts from day prior to filing of return and not before that. We find support for this conclusion of ours from decisions of Supreme Court cited earlier. Hence, we vacate order of CIT (A). Since he had not considered appeal of assessee on merits, we restore appeal to his file for deciding same afresh in accordance with law and our observations made above after giving reasonable opportunity of being heard both to assessee as well as ITO. Coming to cross objection filed by assessee, we are not satisfied with reason given for delay in filing same and so we reject same as time barred. In result, Departmental appeal may be treated as allowed for statistical purposes while cross objection filed by assessee is dismissed in limine. *** INCOME TAX OFFICER v. HALMIRA ESTATE TEA (P) LTD.