JUDGMENT : S. P. Sinha, J. At the instance of the Additional Commissioner of Income Tax, Bihar Patna, the Patna Bench of the Income Tax Appellate Tribunal has referred the under-mentioned question under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act) for opinion of this Court :- “Whether on the facts and in the circumstances of this case, penalty could be imposed where the return had been filed under Section 139(4) of the Income Tax Act, 1961." 2. This question is common to all the four tax references. The facts are also common. This JUDGMENT : will, therefore, govern all the four cases. 3. On the facts which I am presently going to state, the question as referred, covers only a part of the real controversy. The wider controversy is, whether the Income Tax Appellate Tribunal (hereinafter referred to as the Tribunal) was right In deleting the penalty levied on the assessee under Section 271 (1)(a) of the Act and the narrow controversy is, whether the filing of return of income in terms of Section 139(4) of the Act absolves the assessee of the default in non-compliance with the terms of Section 139(1) or 139(2) of the Act. I may indicate here that in terms of Section 139(7) of the Act an assessee is not required to file his return of Income under 17 Section 139(1) for any previous year, if for such year he has already filed a return of income in accordance with Section 139(2) of the Act. Section 139(7) of the Act reads as under :- "No return under Sub-section (1) need be furnished by any person for any previous year if he has already furnished a return of income for such year in accordance with the provisions of Sub-section (2)." This Court in the case of Patna Textile (1975) 100 I.T.R. 253 has held that if an assessee Is called upon to file his return of income for any previous year through notice under Section 139(2) of the Act, his obligation to file his return of income under Section 139(1) of the Act ceases. Be that as it may, the question still remains, whether the default in compliance with the terms of Section 139(1) of the Act or of the notice under Section 139(2) of the Act is cured by the filing of the return of income under Section 139(4) of the Act. If it does, no question of imposition of penalty under Section 271(1)(a) would arise, as is the view of the Tribunal, but if it does not a question relating to the validity of the imposition of such penalty would arise. The question referred by the Tribunal is, therefore, inapt and will require to be reframed. I, accordingly, reframe it like this:- "Whether the filing of return of income under Section 139(4) of the Act for the assessment years 1961-62 to 1964-65 under Section 139(4) of the Act absolves the assessee of his default in complying with the terms of Section 139(1) of the Act. If not, whether the penalty levied on the assessee under Section 271 (1) (a) of the Act for the said assessment years is legal and valid? 4. I now proceed to state the facts : The assessment years for which penalty under Section 271 (1) (a) has been levied are assessment years 1961-62 to 1964-65. The returns for the respective assessment years under Section 139(1) of the Act were required to be filed latest by 30th June of each assessment year, but were filed for the respective years on 30th June, 1964; 30th August, 1965; 21st September, 1965; and 30th December, 1965. Admittedly no notice under Section 139(2) for any assessment year was served on the assessee. Thus the return for the assessment year 1961-62 was filed 36 months after the last date; the return for the assessment year 1962-63 was filed after 38 months of the due date; the return for the assessment year 1963-64 was filed after 27 months of the due date; and the return for the assessment year 1964-65 was filed after 18 months of the due date. The Income Tax Officer Initiated proceedings under Section 271(1)(a) of the Act for the defaults and after rejecting the assessee's explanation for the defaults, Imposed penalty of Rs. 24,481/-; 22,691/-; 16,900/-; and 15,600/-for the respective assessment years. The appellant Assistant Commissioner rejected the appeals of the assessee and affirmed toe penalties Imposed by the Income Tax Officer. 5. The Income Tax Officer Initiated proceedings under Section 271(1)(a) of the Act for the defaults and after rejecting the assessee's explanation for the defaults, Imposed penalty of Rs. 24,481/-; 22,691/-; 16,900/-; and 15,600/-for the respective assessment years. The appellant Assistant Commissioner rejected the appeals of the assessee and affirmed toe penalties Imposed by the Income Tax Officer. 5. On further appeals filed by the assessee before the Tribunal the penalties imposed for the respective years were deleted on the ground that since the assessee had filed the returns of Income for the respective years under Section 139(4) of the Act, which was one of the modes prescribed in the Act for filing return of total income, the assessee could not be penalised for not filing the returns of income under Section 139(1) of the Act. The Tribunal relied upon its decision in the case of (1) M/s S. S. Mukherjee & Co. (I. T. A. No. 650 Patna of 1969), in which it had observed that under Section 139 of the Act there are three modes for filing return of income, namely, under Section 139(1); under Section 139(2) and 139(4) of the Act. A return of income filed within the time prescribed for filing it either under Section 139(1) or under Section 139 (2) or under Section 139(4) was a proper return. A person could not file his return of Income more than once. If, therefore, a person has filed his return of income in accordance with either of the three specified modes; he will be needed to have filed a valid return of income absolving him of the default in filing return of Income. The provisions of Section 271(1)(a) would not then apply to such a case. 5. The Tribunal, having thus deleted the penalties imposed under Section 271 (1) of the Act against the assessee, at the instance of the Department, has made these references to this Court under Section 256(1) of the Act. These are all the relevant facts. 6. Mr. Rajgarhia, appealing for the Department submitted that the Tribunal had gone wholly wrong in dealing with the question relating to the Imposition of penalty under Section 271(1)(a) of the Act In that manner. Such penalty; it was urged, was legiable for committing a default and not for compliance with one or the other provisions, of the law. 6. Mr. Rajgarhia, appealing for the Department submitted that the Tribunal had gone wholly wrong in dealing with the question relating to the Imposition of penalty under Section 271(1)(a) of the Act In that manner. Such penalty; it was urged, was legiable for committing a default and not for compliance with one or the other provisions, of the law. Compliance with the requirement of Section 139(4) of the Act, it was contended, could not absolve the assessee of the default which be had already committed by not filing his return under Section 139(1) of the Act. He referred to the decisions' of several High Courts in support of his contention. Two of them are Full Bench decisions, one being the decision of the Orissa High Court In the case of (2) Commissioner of Income Tax V. Ganga Ram Chepolia (1976) 103 I. T. R. 613 and the other being the decision of the Allahabad High Court in the case of (3) Metal India Products (1978) 113 I. T. R. 83. He therefore submitted that the levy of penalty was justified and the references should be answered accordingly. Mr. Jain, appealing on behalf of the assessee firstly submitted that the provisions contained under Section 139(4) was in effect a proviso to Section 139(1) of the Act, so that a return filed under the former should be deemed to be a return filed in terms of Section 139(1) of the Act. In support of this proposition he referred to a decision of the Supreme' Court in the case of (4) The Commissioner of Income Tax V. Kulu valley Transport Corporation [(1970) 77 I.T. R. 518] A. I. R. 1970 Supreme Court 1734. Secondly, he submitted that the period of default for the purpose of levy of penalty could not be calculated In the terms as provided under Section 271 (1)(a) of the Act and, therefore the legislative intent for levy of penalty in case of default in filing return of income must fail. According to learned counsel. If an assessee failed to file his return of Income within the period specified In Section 139(1) or in the notice under Section 139(2), he could never file the return of 'income in terms of those provisions so that the default once made would continue till infinity. According to learned counsel. If an assessee failed to file his return of Income within the period specified In Section 139(1) or in the notice under Section 139(2), he could never file the return of 'income in terms of those provisions so that the default once made would continue till infinity. Unless therefore, a period could be worked out on the basis of any of the provisions contained in the Act at which the default would end the quantum of penalty was impossible to be calculated. According to Mr. Jain, therefore, viewed from either angle, the penalty -Imposed against the assessee under Section 271(1)(a) of the Act for the assessment years in question must be held to have been validly deal and the references be answered accordingly. 8. I will first take up the question as to whether Section 139 (4) could be read as proviso to Section 139 (1) of the Act. Section 139 (4) reads as under :- “Any peps on who has not furnished a return within the time allowed to him under sub-section (1) or sub-section (2) may, before the assessment Is made, furnish the return for any previous year at any time before the end of the period specified in the clause (b) and the provisions of Sub-section (8) shall apply in every such case." I may indicate that clause (b) aforesaid prescribes the time limit for filing returns of income pertaining to particular assessment years. For the relevant assessment years the time limit prescribed is two years from the end of such assessment year. The aforesaid Sub-section (8), prescribes the rate of interest to be charged, for failure to file the return of income under Sub-section (1) or Sub-section (2) or Sub-section (4) of Section 139 within the specified time or for total failure to furnish a return of Income. The Sub-section (4) of Section 139 enables an assessee to file a return of income for the previous year even after the time specified under Sub-section (1) and (2) have elapsed. The return of income filed in terms of Section 139 (4) is a return of income of a special type, distinct from a return filed in terms of Sub-section (1) or Sub-section (2) of Section 139 of the Act. The return of income filed in terms of Section 139 (4) is a return of income of a special type, distinct from a return filed in terms of Sub-section (1) or Sub-section (2) of Section 139 of the Act. By filing a return of income within the time prescribed under Section 139 (4) of the Act, if the assessment has Dot yet been made, the assessee escapes a summary assessment under Section 144 of the Act. Another purpose is that it may cut short the period of default in filing the return of income in terms of Section 139 (1) or 139 (2) of the Act. 9. Now the argument made by Mr. Jain for the assessee is that Section 139 (4) should be deemed to be a proviso of Section 139 (1) of the Act. This argument is primarily on the footing of the decision of the Supreme Court in the case of Commissione17 of Income Tax V. Kulu Valley Transport Corporation Ltd. (Supra) and also because, according to him a return of income filed under Section 139 (4) had the same character of being filed voluntarily as was a of Income filed under Section 139 (1). According to him therefore, it was only logical to presume that the time limit prescribed for filing return of income under Section 139 (1) would be deemed to have been extended up to the time within which a return under Section 139 (4) could be filed. 10. The said decision of the Supreme Court is clearly distinguishable. In that case the question was whether the assessee, who had failed to file his claim for set off of his loss within the time specified under Section 22 (2A) of the Income Tax Act, 1922 could still be held to be in time, if he had filed his return under Section 22 (3) of the said Act before the assessment was made. It was in that connection that their Lordships were considering the effect of a return filed, not in terms of Section 22 (1), as required under Section 22 (2A) of the said Act, but under Section 22 (3) of the said Act. Their Lordships observed that:- “A return submitted at any time before the assessment is made is a valid return. Their Lordships observed that:- “A return submitted at any time before the assessment is made is a valid return. In considering whethel1 the return made is within time, Subsection (1) of Section 22 must be read along with Sub-section (3) of that Section. A return whether it is a return of income of profit or gains on of loss must be considered as having been made within the time prescribed, if it is made within the time specified in Section 22 (3). In other words, If Section 22 (3) is complied with then Section 22 (1) must also be held to have been complied with. If compliance has been made with the latter provision the requirements of Section 22 (2A) would stand-satisfied." These observations nowhere indicate that Section 22 (3) of that Act was treated to be a proviso to Section 22 (1). As I understand, all that their Lordships convey by these observations is that the only requirement for set off of loss being that a valid return should be filed before the assessment is made, and if such a return hag been filed, be it under Section 22 (1) or be it under Section 22 (3) of the said Act, the assessee's claim for the set off of his loss could not be defeated. Their Lordships were mainly concerned with the question as to whether there had been a compliance of the requirements by filing g valid return which might enable the assessee to the set off of his loss. This decision can, therefore, be no authority for the proposition as to whether the non-filing of the return of income within the time prescribed under Sections 139 (1) or 139 (2) of the Act was or was not a default. The question arising in the Instant case, therefore, cannot be answered on the basis of the said decision of the Supreme Court. In fact the two Full Bench decisions, one of the Orissa High Court and the other of the Allahabad High Court (Commissioner of Income Tax Vs. Ganga Ram Chapolia (1976 I. T. R. 163; and Metal India Products Vrs. In fact the two Full Bench decisions, one of the Orissa High Court and the other of the Allahabad High Court (Commissioner of Income Tax Vs. Ganga Ram Chapolia (1976 I. T. R. 163; and Metal India Products Vrs. the Commissioner of Income Tax (1978 113 I. T. R. 830) have also taken the view that the decision of the Supreme Court in the case of Kulu Valley Transport Corporation Pvt. Ltd. is of no avail in determining the question as to whether Section 139 (4) of the Act could be read as a proviso to Section 139 (1) of the Act. 11. Even otherwise the argument made by Mr. Jain is difficult to be accepted. If actually the Legislature intended the provisions contained in Sub-section (4) of Section 139 of the Act to be a proviso to Sub-section (1) thereof, it would have felt no difficulty in saying so. It is trite (sic) law that in construing the provisions of an Act nothing is to be added, nothing is to be subtracted and nothing Is to be implied unless there be a clear indication in the Act itself r for doing so. On reading the various provisions relating to the filing of the return of income as obtained in Section 139 of the Act, it is clear that the three modes of filing of returns of income stand distinctly apart from each other. Neither of them overlap the other. The first part of Mr. Jain's argument, namely, that Section 139 (4) of the Act should be deemed to be a proviso to Section 139 (1) must, therefore, be rejected. As a natural corollary to the rejection of this argument, it follows that the filing of a return of income under Section 139 (4) of the Act, does not absolve an assessee of his default in compliance with the terms of Section 139 (1) or Section 139 (2) of the Act. The Tribunal, therefore, clearly went wrong in deleting the penalty levied under Section 271 (1) (a) on the assessee. 12. Passing on now to the next part of Mr. Jain's argument as to whether the provisions contained in Section 271 (1) (a) of the Act were workable provisions, I think, here also the argument made by learned counsel is not sound. 13. Mr. 12. Passing on now to the next part of Mr. Jain's argument as to whether the provisions contained in Section 271 (1) (a) of the Act were workable provisions, I think, here also the argument made by learned counsel is not sound. 13. Mr. Rajgarhia appearing for the Department raised an objection to the entertainment of such a question on the ground that the question did not arise out of the Tribunal's ORDER :. 14. As already observed, while reframing the question, that the wider and the real issue in the cases relates to the validity or otherwise of the levy of penalty under Section 271 (1) (a) of the Act and If the arguments made on behalf of the assessee is considered in that context, it cannot be said that the question does not arise out of the Tribunal's ORDER :. It is an accepted principle of law that where the question referred for opinion did not cover the real controversy in issue, the High Court could reframe the question and decide the real controversy. It cannot be gainsaid that a controversy may involve different approaches for its solution. where, the real controversy is, whether the penalty levied under Section 271 (1)( a) was legal and valid, it can be viewed from different angles. In this case it has been approached by the Tribunal from a particular angle, which approach has been found to be incorrect and then the assessee wants it to be viewed from another angle. It is not a new point of law that is being raised, rather It is a new point of view on the same question which is being raised by learned counsel for the assessee. Moreover, no additional facts are necessary for deciding it. The objection raised by the learned counsel for the Department Is accordingly rejected. 15. In ORDER :to appreciate the contentions raised by Mr. Jain for the assessee, It would be necessary to read the relevant provisions of Section 271 of the Act. They are as under:- "271(1). Moreover, no additional facts are necessary for deciding it. The objection raised by the learned counsel for the Department Is accordingly rejected. 15. In ORDER :to appreciate the contentions raised by Mr. Jain for the assessee, It would be necessary to read the relevant provisions of Section 271 of the Act. They are as under:- "271(1). If the Income Tax Officer or the Appellate Assistant Commissioner in the course of any proceedings under this Act, is satisfied that any person- (a) has without reasonable cause failed to furnish the return of from income which he was required to furnish under Sub-section (1) of Section 139 or by notice given under Sub-section (2) of Section 139 or Section 148 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by Sub-section (1) of Section 139 or by such notices, as the case may be, he may direct that such person shall pay by way of penalty- (1) in the cases referred to in Clause (a) in addition to the amount of tax, if any, payable by him, a sum equal to 2% of the assessed tax for every month during which the default continued but not exceeding in the aggregate 50% of the assessed tax." 16. The provisions of this Section, in so far as it concerns, the idea of default; it is clear and unambiguous. Whenever an assessee fails either completely or partially to furnish, without any reasonable cause the return of total income which he was required to furnish under Sub-section (1) or Sub-section (2) of Section 139 or under Section 148 of the Act within the time allowed, he is in default. The difficulty, however, arises in so far as it concerns the period of default, i.e. how long the default will continue. The starting point of default is known, being the day following the date on which he should have furnished the return but failed to do so. The termination point, however, is not specified. The difficulty, however, arises in so far as it concerns the period of default, i.e. how long the default will continue. The starting point of default is known, being the day following the date on which he should have furnished the return but failed to do so. The termination point, however, is not specified. Had it been provided, as has been done for the levy of interest in terms of Section 139(8) of the Act that the period of default shall be recounted from the date immediately following the specified date to the date of the furnishing of the return or, where no return has been furnlshe1, the date of completion of the assessment under Section 144", no difficulty in computing the period of default would have arisen. The pliovis1ons contained in Section 271(1)(a), however, say nothing of the kind as 13 laid under Section 139 (8). It is on this basis that learned counsel for the assessee has raised the contention that the provisions contained in Section 271(1)(a)(i) become unworkable and, therefore, even if the legislature intended to levy penalty for default in filing of return of income, the intention has failed. 17. It is one of the cardinal principal of interpretations of statutes that if the intention of the legislature was deducible from the enactment the interpret-or is bound to determine what it was. A construction which would reduce the legislation to futility has to be avoided. Unless there be a very strong ground to justify the inference that the legislator intended some thing which it had omitted to express, the language of the enactment must be interpreted so that it spells out sense and meaning. Unless otherwise made impossible, such construction should be put upon the enactment which will be consistent with the smooth working of the system which the enactment purports to be regularing, and that construction is to be rejected which would Introduce uncertainty, friction or confusion into the working of the system. 18. Bearing these principles in mind, I proceed to deal with the question as to whether the period of default for the purpose of levying penalty in terms of Section 271(1) (a)(i), can be determined by reference to any of the provisions of the Act. 19. One of the provisions which immediately comes to my mind is Sub-clause (1) of Section 271(1)(a). 19. One of the provisions which immediately comes to my mind is Sub-clause (1) of Section 271(1)(a). The quantum of penalty leviable for default in filing the return of Income is prescribed under it. The quantum of penalty is prescribed as: "a sum equal to 2% of the assessed tax for every month during which the dc« fault continued, but not exceeding In the aggregate 50% of the assessed tax." The question is, do the expressions “but not exceeding in the aggregate 50% of the assessed tax" mean that the effective period of default for the purpose of levy of penalty shall cease at the end of 25 months? On a closer look at the said expression, however, I think that it would not be possible to attribute such a meaning to that part of these expressions; because that would amount to adding or substituting some words to the said provisions. In place of "but not exceeding in the aggregate 50% of the assessed tax" one would substitute it by the words “but not exceeding in the aggregate 2% of the assessed tax for 25 months.' the provisions being of a penal character and in a taxation statute, such substitution of expression cannot be permitted. The provision has to be read as it is, without adding or substituting to it and more so when there is no ambiguity in it. The plain meaning of the provisions contained in Sub-clause (1) of Section 271(1)(a), as it appears to me, is that for default under Section 271 (1) (a), the quantum of penalty shall be 2% of the assessed tax for every month of default and may go up to 50% of the assessed tax. The said provision only describes the limits within which the quantum of penalty would vary. It-has no bearing on the question as to how long could the default go. I, therefore, think that the provisions contained in Sub-clause (1) of Section 271 (1) (a) do not provide the answer to the question in issue. 20. I, however, think that the answer to the question in issue is provided by looking at the scheme of the Act in so far as it concerns the levy of penalty. It cannot be gainsaid that penalty under Section 271 (1) (a) is leviable with reference to one single assessment year. 20. I, however, think that the answer to the question in issue is provided by looking at the scheme of the Act in so far as it concerns the levy of penalty. It cannot be gainsaid that penalty under Section 271 (1) (a) is leviable with reference to one single assessment year. An the steps that are taken for levy or such penalty, starting with the notice to show cause and culminating In the service of notice of demand, relate to one single assessment year. The expression assessment year" has been defined in Section 2 (9) of the Act to mean “the period of 12 months commencing on the first day of April every year." If, therefore, penalty under Section 271 (1) (a) is leviable for the default, relating to an assessment year; the default cannot be projected into subsequent n assessment year or years. There is no provision under the Act for carrying over the default in filing the return beyond the limits of an assessment year. Like an assessment of Income to Income tax', which must remain confined to income earned during the previous year relevant to an assessment year, the assessment of penalty must also remain confined to an assessment year. The default cannot, therefore, be carried over beyond that assessment year. That "assessment" includes the levy of penalty is an accepted principle vide the decisions of the Supreme Court in (5) Abraham V, Income Tax' Office17 [(1961 41 I. T. R. 425 A. I. R. 1961 S. C. 609]; and (6) Commissioner or income Tax V. Bhikhaji Dada Bhai (1961) 42 I. T. R. 123; A. I. R. 1961 S. C. 1265]. The levy of penalty under Section 271 (1) (a); like an assessment of Income to income tax, must therefore, 17emaln confined to the happenings within the relevant assessment year. Besides. I think the exclusion of Section 139 (4) from the provisions or Section 271 (1) (a) of the Act has a great significance in as much as it points towards the non-inclusion of the default in filing the return of income extending into the subsequent assessment year for the purpose of calculating the period of default. It may be stated; that in terms of Section 139 (4) of the Act, a return of income could be filed even after the close of the assessment year. It may be stated; that in terms of Section 139 (4) of the Act, a return of income could be filed even after the close of the assessment year. The exclusion of Section 139 (4), therefore, indicates that the period of default could not extend after the close of the relevant year. 21. In substance, therefore, I think for levying penalty In terms of Section 271 (1) (a) of the Act, the period of default starts on the day following the due date for compliance with the terms of Sections 139 (1) or 139 (2) of the Act and remains circumscribed within the twelve months of the relevant assessment year. Similar would be the position where steps have been taken to tax an escaped income; under Section 148 of the Act. There also the period of default in filing the required return of Income will remain circumscribed within twelve months of the year in which steps for reassessment of escaped income have been taken. 22. It therefore, think that the period of default for the purpose of 1evylng penalty in terms of Section 271 (1) (a) (i) is determinable, as discussed above; Mr. Jain's argument must, therefore, fall. The above discussions, possibly may require a recalculation of the period of default but in any event It cannot be said that the levy of penalty under Section 271 (1) (a) of the Act was Invalid or illegal. 23. I accordingly answer the question as reframed, in the following manner:- Filing of return of income under Section 139 (4) of the Act did not absolve the assessee of his default in complying with the terms of Section 139 (1) of the Act for the assessment years in question and consequently penalty under Section 271 (1) (a) of the Act was leviable on him. There will be no ORDER :as to costs. S. Sarwar Ali, J. I agree that the questions be answered as in the JUDGMENT : of my learned brother. There is, however, one aspect on which my view Is not identical with that of my learned brother, who is of the opinion that for the purpose of levying penalty for default in filing the return of income the period of default would be an assessment year that Is to say 12 months as defined In Section 2 (9) of the Act. In my humble view the period of default cannot be so confined. This aspect, however, need not be pursued further, as in my opinion, the reference has to be answered in the manner as Indicated by my learned brother. Question answered accordingly.