P.N. KHANNA, J.

( 1 ) AT the instance of the assessee, Messrs Garg and Company, the incometax Appellate Tribunal Delhi Bench *b REFERRED TO to this Court under section 256 (1) of the Incometax Act. 1961, the following questions :" (1) Whether on the facts and in. the circumstances of the case and on a correct interpretation of the provisions of section 139 (4) of the Incometax Act, 1961, interest could be legally charged on the assessee as provided in proviso (iii) of section 139 (1) of the Act (2) Whether on the facts and in the circumstances of the case, the Tribunal was legally right in holding that subsection (4) of section 139 of the Incometax Act, 1961 does not require an assessee to apply for extension of time for filing its return of income as a condition precedent for charging of interest as provided in proviso (iii) of section 139 of the Incometax Act, 1961"

( 2 ) THE assessment year in question is 196263 corresponding to the previous year ending on March 31, 1962. The assessee is a registered firm carrying on business of building contractor. The due date for filing the return of income was November 30, 1962, but it was filed on February 14, 1966. There was, thus, a delay of 38 months. The Incometax Officer charged interest under section 139 (1) of the Act for the late filing of the return. The Appellate Assistant Commissioner confirmed the said order in appeal. Before the Incometax Appellate Tribunal in second appeal, the assessee contended that interest could be charged if all the conditions mentioned in section 139 (l) (iii) of the Incometax Act, 1961 were satisfied. The return in the instant case was filed before the assessment was made under subsection (4) of section 139 and not within the period prescribed in clauses (a) or (b) of section 139 (1) of the Act. No application for extension of time was filed and no extension had been granted by the Incometax OfficerThe liability to pay interest, contended the assessee, therefore, did not arise. It was also contended that there was no specific form of return prescribed under section 139 (4) of the Act. The return that was filed was under section 139 (1 ). The Revenue conceded the proposition that section 139

(4) of the Act did not provide for any specific class of return and that all returns filed under section 139 (4) were in discharge of the obligation to file the return under section 139 (1) and as such provisions of section 139 (1) were applicable to the case. Referring to section 139 (4), the Tribunal was of the opinion that it does not require an application to be made by an assessee for extension of time, and that if the assessce wanted to avail of the benefit of filing the return beyond the period provided for in clauses (a) or (b) of section 139 (1), the provisions regarding payment of interest had to be applied. The Revenue was, therefore, held justified in charging interest for late filing of the return. The relevant portions of section 139 of the Incometax Act, 1961, read as follows:"139. Return of Income.(1) Every person, if his total income in respect of which he is assessable exceeds the maximum amount which is not chargeable to incometax, shall furnish a return of his income xx xx xx during the previous year, m the prescribed form xx xx xx (A) in the case of every person whose total income, includes any income from business or profession, before the expiry of six months from the end of the previous year or before the 30th day of June of the assessment year, whichever is later; (B) xx xx xx xx xx provided that. on an application made in the prescribed manner, the Incometax Officer may, in his discretion, extend the date for furnishing the return (I)XX xx xx xx (II)XX xx xx xx (III) up to any period faring beyond the dates mentioned in clauses (i) and (ii), in which case, interest at nine per cent per annum shall be payable from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the date of the furnishing of the return (2) In the case of any person who, in the Incometax Officers opinion, is assessable under this Act, xx xx xx, the Incometax Officer may, before the end of the relevant assessment year, serve a notice upon him requiring him to furnish within thirty days from the date of service of the notice, a return of his income in the prescribed form xx xx xx: provided that on an application made in the prescribed man ner the Incometax Officer may, in his discretion, extend the date for the furnishing of the return, whether fixed originally or on application, falls beyond the 30th day of September or, as the case may be, the 31st day of December of the assessment year, the provisions of subclause (iii) of the proviso to subsection (1) shall apply. (3)XX xx xx xx (4) (a) Any person who has not furnished a return within the time allowed to him under subsection (1) or subsection (2) may before the assessment is made, furnish the return for any previous year at any time throughout the end of four assessment years from the end of the assessment year to which the return relates and the provisions of subclause (iii) of the proviso to subsection (1) shall apply in every such case. " (SUBSECTION (4) as reproduced above is applicable in the present case. It was amended with effect from April 1, 1968 ).

( 3 ) MR. BN. Kirpal, the learned counsel for the Revenue, contended that any person who has not furnished a return within the time allowed under subsections (1) or (2), but who furnishes the return in pursuance of subsection (4) before the assessment is made, subjects himself to the provisions of clause (iii) of the proviso to subsection. According to him, the only part of that provision, which is relevant in such a case and which will, therefore, be applicable, is the provision regarding the obligation of the assessee to pay interest at 9 per cent per annum ( up to the date of the furnishing of the return.

( 4 ) THE contention of the learned counsel is not sound. It is admitted that the assessee in this case did not make an application for extension of the date for furnishing the return and the Incometax Officer did not extend such date. The question of levying interest under the proviso to subsection (1) of section 139, therefore, does not arise Mr. Kirpal contended that such assessee should be deemed to have made an oral application when he furnished the return, and the Incometax Officer be taken as having extended the time up to the date when the return was actually filed. This contention has no basis In the first place, if the time is taken to have been extended by the Incometax Officer on an oral application of the assessee, then the return would be a return within the time allowed to him under subsection (1) or subsection (2), as the case may be. Subsection (4), which is being invoked by the Revenue, would not be applicable at all. Secondly, the proviso to subsection (1) of section 139 requires an application to be made in the prescribed manner, which requires the use of the prescribed form for getting the extension. The statute itself rules out specifically an oral application. There is no question of an oral application or an oral order extending the date for furnishing the return.

( 5 ) MR. Kirpal then contended that subsection (4) does not apply the whole of the proviso to subsection (1) to the case. It is the interest part of the proviso which alone is relevant in the context of the language of subsection (4), which, according to him, would apply. The contention again is without merit. Subclause (iii) torn from its context, in itself, would hardly make much sense. It would remain an incomplete sentence. Subclause (iii) has to be read along with the opening part of the proviso, which says that the Incometax Officer may in his discretion extend the date for furnishing the return "up to any period falling beyond the date mentioned in clauses

(i) and (ii), in which case, interest at 9 per cent per annum shall be payable. " The part of subclause (iii) which requires the assessee to pay interest comes into operation only in case the extension of the date for furnishing the return beyond the proscribed dates is given by the Incometax Officer in his discretion. This power is exercisable only when an application is made in the prescribed manner. Various parts of the proviso including subclause (iii) are so interdependent that no one part can stand by itself. We, therefore, hold that interest could be demanded from the assessee only in case an application in the prescribed manner had been made by him and the Incometax Officer in his discretion had extended the date for furnishing the return.

( 6 ) MR. Kirpal contended that in order to make the section wofk, it is necessary to read the language of the proviso in the manner suggested by him. He submitted that a literal reading of the proviso would render subsection (4) completely unworkable. This contention of the learned counsel has no substance. We are not privileged to read the language of a section in a manner different from the one in which the language is incorporated in the section. We cannot incorporate words in the statute which the legislature in its wisdom has not incorporated, nor can we ignore the words which the legislature has incorporated. This is more so when the statute to be interpreted is a fiscal statute. It is now well settled that language of such a statute, has to be construed in its strict sense. The assessee is always entitled to the benefit of doubt, if any, left in the language of the statute

( 7 ) SUBSECTION (4) applies the provisions of clause (iii) of the proviso to the cases falling under it. The phrase "in which case", occurring in clause (iii) makes the subsequent portion of the clause dealing with interest dependent on the earlier portion of the clause, which read with the opening part of the proviso makes the making of an application in the prescribed manner and the actual grant of extension by the Incometax Officer, condition precedent for the payment of interest. There may be ;i lacuna in the language, which we are afraid, we cannot fill up. We are fortified in this view by the subsequent amendment effected by Finance Act, 1972, by which the lacuna has been filled up by substituting old subsection (8), by a new subsection (8) which reads as follows :" (8) (a) Where the return under subs. (1) or subs. (2) or subs. (4) for an assessment year is furnished after the specified date. or is not furnished, then whether or not the Incometax Officer has extended the date for furnishing the return under subs. (1) or subs. (2)the assessee shall be liable to pay simple interest at twelve per cent per annum, reckoned from the day immediately following the specified date to the date of the furnishing of the return or. where no return has been furnished, the date of completion of the assessment under s. 144, on the amount of the tax payable on the total income as determined on regular assessment, as reduced by the advance tax, if any, paid, and any tax deducted at source :provided that the Incometax Officer may, in such cases and under such circumstances as may be prescribed, reduce or waive the interest payable by any assessee under this subsection. xx xx xx xx xx"

( 8 ) THE very fact that subsection (8) has been amended shows that the legislature became conscious of the lacuna that had been left in the language of this section before its amendment and which has now been removed by introducing the amendment. The assessee, therefore, was entitled to the benefit of the said lacuna, and could not be called upon to pay interest, unless he had applied for extension of time and the extension sought for had been granted.

( 9 ) MR. S. B. Gupta, the learned counsel for the assessee relied on a judgment of the Division Bench of the Andhra Pradesh High Court in Kishan Lal Hari Charan Vs. Incometax Officer, Nizamabad, (1971) 82 ITR 660 (1), where it was held that the assessee was liable to pay penal interest under clause (iii) only if he had asked for extension of time for submission of the return. In the absence of such a request, clause (iii) did not apply, although other consequences like the assessee subjecting himself to the penalty provided in section 271 of the Act may follow. We are in respectful agreement with this view. This judgment of the Andhra Pradesh High Court was noticed by the Gauhati High Court in Ganesh Sree Ram Vs. Incometax Officer, Shillong, (1974) 93 ITR 19 [LQ/GauHC/1973/17] , (2), where it was dissented from. The Gauhati High Court held that an application by the assessee and a consequent order extending the time for furnishing the returns are not conditions precedent for authorising the Incometax Officer to charge interest under clause (iii) of the proviso to section 139 (1)According to the learned Judges, the assessee, having failed to furnish the return within the time allowed, had taken the benefit of subsection (4), which attracted clause (iii) of the proviso to subsection (1) and empowered the Incometax Officer to charge interest for the late filing of the return. The relevant language of clause (iii) was not discussed in detail. We must say with profound respect that we are unable to persuade ourselves to agree with this view. As there was no application by the assessee for extension of time for submitting the return, nor was there any extension granted by the Incometax Officer, the question of the assessees liability to pay interest did not arise in the instant case.

( 10 ) IN the result, the contention raised on behalf of the assessee must be accepted. The answer to question No. 1 REFERRED TO to above is in the negative, while the answer to question No. 2 is in the affirmative. Both the answers, thus, are in favour of the assessee and against the Revenue. IN the peculiar circumstances of the case, there shall be no order as to costs.