JUDGMENT V. P. Gupta, J.—By this writ petition, the petitioner has challenged the assessment order, date 31-1-1972 passed by the Income Tax Officer ‘B Ward Simla and the subsequent orders, dated 28-8-1972 (passed by the Assistant Commissioner of Income Tax, Ambala) and 10-12-1974 (passed by the income Tax Appellate Tribunal, Chandigarh Branch, Chandigarh) regarding the assessment year 1968-69. 2. The admitted facts are that the petitioners firm was to file a return of income tax for the assessment year 1968-69. A notice under section 139 (2) of the Income-tax Act (hereinafter the Act) was served upon the petitioner on 22-7-1968 and the return could be filed till 22-8-1968. 3. The petitioner without filing the return made an application on 10-10-1969 seeking extension of time but this application was rejected and information was conveyed to the petitioner on 22-10-1969. As assessment order had not been passed by the Income Tax Officer, and in the mean time the petitioner filed a return of his income on 31-3-1971, declaring Rs. 1,30,070.34 as income. 4. The Income Tax Officer, Simla vide his order, dated 31-1-1972 assessed the income of the petitioner at Rs. 1,47,570 (Annexure A). The petitioner filed an appeal with the Appellate Assistant Commissioner of Income Tax, Ambala Range, who allowed the petitioners appeal in part by granting a relief of Rs. 14,127. The assessable income thus remained at Rs. 1,32,743. A further appeal was preferred by the petitioner to the Income Tax Appellate Tribunal, Chandigarh Branch, but vide order, dated 10-12-1974 this appeal was dismissed (Annexure CC). 5. In the assessment order, dated 31-1-1972, the Income Tax Officer had charged interest under section 139 (8) of the Act. The petitioner contended before the Appellate Authorities that the interest under section 139 (8) of the Act was not chargeable, but this contention of the petitioner was not accepted by the Appellate Authorities who took the view that they lacked jurisdiction to adjudicate upon the question of levy of interest and the petitioner had no right to appeal under the Act. In such circumstances, the petitioner has now challenged the orders of the Income Tax Authorities regarding levy of interest. 6. We have heard the learned Counsel for the parties and have also gone through the records of the case. 7. In such circumstances, the petitioner has now challenged the orders of the Income Tax Authorities regarding levy of interest. 6. We have heard the learned Counsel for the parties and have also gone through the records of the case. 7. The assessment year involved in the present case is 1968-69 and the learned Counsel for the parties admit that the provisions of the Act as applicable for the assessment year 1968-69 would be applicable in the present case. They further admit that section 139 was subsequently amended and from 1-4-1972 interest for delay or default in furnishing the return of income i in all cases) is chargeable from the expiry of the due date under section 139 (1) of the Act. 8. Section 139 of the Act as applicable in the present case and as it stood prior to the various amendments reads as follows: "139. 8. Section 139 of the Act as applicable in the present case and as it stood prior to the various amendments reads as follows: "139. Return of income.—(I) Every person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previons year exceeded the maximum amount which is not chargeable to income tax, shall furnish a return of his income or the income of such other person during the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed— (a) In the case of every person whose total income, or the total income of any other person in respect of which he is assessable under this Act, includes any income from business or profession, before the expiry of six months from the end of the previous year or where there is more than one previous year, from the end of the previous year which expired last before the commencement of the assessment year, or before the 30th day of June of the assessment year, whichever is later ; (b) in the case of every other person, before the 30th day of June of the assessment year : Provided that, on an application made in the prescribed manner, the Income-tax Officer may, in his discretion, extend the date for furnishing the returned— (i) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired on or before the.-1st day of December of the year immediately preceding the assessment year, and in the case of any person referred to in clause (b), up to a period not extending beyond the 30th day of September of the assessment year without charging any interest, and (ii) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired after the 31st day of December of the year immediately preceding the assessment year, up to the 31st day of December of the assessment year without charging any interest, and (iii) up to any period falling beyond the dates mentioned in clauses ii) 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— (a) in the case of a registered firm or an unregistered firm which has been assessed under clause (b) of section 183, on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm, and (b) in any other case, on the amount of tax payable on the total income reduced by the advance tax, if any, paid or by any tax deducted at source, as the case may be. (1-A) Where as a result of an order under section 154 or section 155 or section 250 or section 264, the amount of tax on section 254 or section 260 or section 262 or section 264, the amount of tax on which interest was payable under clause (iii) of the proviso to sub-section (i) has been reduced, the interest shall be reduced accordingly, and the excess interest paid, if any, shall be refunded. (2) In the case of any person who is the Income-tax Officers opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income-tax 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 or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Provided that on an application made in the prescribed manner the Income-tax Officer may, in his discretion, extend the date for the furnishing of the return, and when the date for furnishing the return, whether fixed originally or on extension, 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 sub-clause (iii) of the proviso to sub-section (1) shall apply. (3) If any person who has not been served with a notice under sub-section (2;, has sustained a loss in any previous year under the head "Profits and gains of business or profession" or under the head "Capital gains" and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72 or sub-section (2) of section 73 or sub-section (1) of section 74, he may furnish, within the time allowed under sub-section (1) a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1). (4-A) Any person who has not furnished a return within the time allowed to him under the 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 clause (b), and the provisions of clause (iii) of the proviso to subsection (1) shall apply in every such case. (b) The period referred to in clause (a) shall be— (i) where the return relates to a previous year relevant to any assessment year commencing on or before the 1st day of April, 1967, four years from the end of such assessment year, (ii) where the return relates to a provious year relevant to the assessment year commencing on the 1st day of April, 19b8, three years from the end of the assessment year; (iii) where the return relates to a previous year relevant to any other assessment year, two years from the end of such assessment years. (5) If any person having furnished a return under sub-section (1) or sub-section (2) discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the assessment is made. (6) The prescribed form of the returns referred to in sub-sections (1) (2) and (3) shall, in the case of an assessee engaged in business profession, require him to furnish particulars of the location and style of the Principal place where the carries on the business or profession and all the branches thereof, the names and addresses of his partners, if any, in such business or profession and if he is a member of an association or body of individuals, the names of the other members of the association or the body and the extent of the share of the assessee and the shares of such partners or the members, as the case may be, in the profits the business or profession and any branches thereof. (7) No return under sub-section (1) need be furnished by any person for any previous year if he has already furnished a return of in come for such year in accordance with the provisions of subsection (2). (7) No return under sub-section (1) need be furnished by any person for any previous year if he has already furnished a return of in come for such year in accordance with the provisions of subsection (2). (8) Notwithstanding anything contained in clause (iii) of the proviso to sub-section (1) the Income-tax Officer may, in such cases and under such circumstances as may be prescribed, reduce or waive the interest payable by any person under any provision of this section." 9. According to the contention of the learned Counsel for the petitioner, the Income Tax authorities could only charge interest if the application filed for extension of time had been allowed by the Income-tax Officer. He contended that although an application for extension was filed, but this request for extension of time was disallowed by the Income Tax Officer and therefore the Income Tax Officer had no jurisdiction to charge any interest. He contended that the rejection of the application meant that no application for extension of time was filed by the petitioner. 10. He referred to section 139 of the present Act, as amended with effect from 1-4-1972. The relevant proviso of which reads as follows:— "Provided that on an application made in the prescribed manner, the Income-tax Officer may in his discretion extend the date for furnishing the return and notwithstanding that the date is so extended the interest shall be chargeable in accordance with the provisions of sub-section (8)." It was contended that the need to amend the law was necessitated because prior to 1-4-1972, the interest could only be charged, if the Income Tax Officer had allowed the extension of time for filing the return. He also referred to the judgments (1971) 82 ITR 660, (Krishanlal Haricharan v. Income-tax Officer, A-Ward Nizamabad), (1976) 102 ITR 443, [Commissioner of Income Tax, Bihar v. Bahri Brothers (P.) Ltd.] (1977) 107 ITR 382 (Mulakh Raj Bimal Kumar v. Income-tax Officer and others) and (1977) 107 ITR 559 (National Hotel and Dilkusha Cabin v. Income-tax Officer A9 Ward, District III (2), Calcutta). 11. The learned Counsel for the respondents contended that the Income Tax Officer was justified in charging the interest. It was contended that the petitioner had suppressed material facts and had not disclosed that an application for extension of time was filed which was rejected. 11. The learned Counsel for the respondents contended that the Income Tax Officer was justified in charging the interest. It was contended that the petitioner had suppressed material facts and had not disclosed that an application for extension of time was filed which was rejected. The further contention was that the petitioner could not invoke the writ jurisdiction and the proper remedy was to file an application under section 256 of the Act. 12. It was also contended that in view of the provisions of section 139 (1) (iii) read with sections 139 (4) (a), 139 (ii) (a) and section 139 (8) of the Act, as applicable for the assessment year 1968-69, the petitioner was liable to pay interest. 13. We have considered the contentions of the learned Counsel for the parties and have perused the records. 14. Regarding maintainability of the writ petition we are of the view that in the facts and circumstances of the present case, when the Appellate Income Tax authorities have held that they had no jurisdiction to entertain the appeal for the reason that no appeal was provided on the quantum of levying interest, the petitioner can definitely invoke the writ jurisdiction of this Court for claiming an appropriate relief, if he is otherwise entitled to the same. The question of the applicability of section 256 of the Act cannot apply in these circumstances. Hence it is held that the present writ petition is maintainable. 15. Further the petitioner in the petition has stated that no application for extension of time was filed, but in the rejoinder it is admitted that an application for extension of time was filed which was rejected. According to the petitioner, this application was not in terms of the proviso to section 139 (1) of the Act. 16. After perusal of the petition, the reply affidavit and the rejoinder, we find that there is no suppression of material facts. In any event, because the learned Counsel for the parties have admitted the factual position, therefore, we are not inclined to dismiss the petition on this technical objection. 17. No wit becomes necessary to decide the question as to whether the order regarding charging of interest is valid in view of the provisions of section 139 of the Act as it stood at the time of the assessment year 1968-69. 18. 17. No wit becomes necessary to decide the question as to whether the order regarding charging of interest is valid in view of the provisions of section 139 of the Act as it stood at the time of the assessment year 1968-69. 18. From a joint reading of the proviso (iii) to section 139 (1) and section 139 (4) (a), it is clear that a person who has not furnished a return within time allowed to him under sub-section (1) or sub-section (2) of section 139, can file a return for any previous year before the end of the period specified in clause (b) of section 139 (4) and the provisions of clause (iii) of proviso to, to section 139 (1) are to apply in every such case. 19. Under clause (iii) of proviso to sub-section (1) of section 139, interest at the rate of 9% per annum will become payable from 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. 20. The contention of the learned Counsel for the petitioner that if the return is filed under section 139 (4) then no interest is payable cannot be accepted for the reason that provisions of clause (iii) of the proviso to sub-section (1) of section 139 have been made applicable even to a case in which a return is filed by an assessee under section 139 (4). Section 139 (8) only provides that in appropriate cases the Income Tax Officer has the power to reduce or waive the interest payable by any person under the provisions of section 139. 21. In (1982) 134 ITR 338 (Ram Lai Ram Gopal Agarwal v. Commissioner of Income-tax, M. P.) the assessee was required to file the return for the assessment year 1964-64 on or before 30-6-1963 in accordance with the provisions of section 139 (1) of the Act. The return, however, was filed on 1-12-1964. The Income Tax Officer ordered the assessee firm to pay interest in accordance with sub-clause (iii) of proviso to section 139 (1) and also imposed penalty under section 171 (1) (a) of the Act. The assessee challenged the order regarding imposition of the penalty and levy of interest under sub-clause (iii) of the proviso to section 139 (1). The Income Tax Officer ordered the assessee firm to pay interest in accordance with sub-clause (iii) of proviso to section 139 (1) and also imposed penalty under section 171 (1) (a) of the Act. The assessee challenged the order regarding imposition of the penalty and levy of interest under sub-clause (iii) of the proviso to section 139 (1). After interpreting section 139 (4), a Division Bench of the Madhya Pradesh High Court held that even in the case of a return filed within the time allowed under section 139 (4), the provisions of sub-clause (iii) of the proviso to sub-section (2) thereof apply, that is, the interest was recoverable in accordance with the provisions of sub-clause (iii) of the proviso to sub-section (1) in all such cases. 22. A Division Bench of the Mysore High Court in (1972) 86 ITR 566 (Indian Telephone Industries Co-operative Society Ltd. v. Income Tax Officer, Special Survey Circle, Bangalore) also held that sub-clause (iii) of proviso to sub-section (I) of section 139 of the Act applies not only where the assessee requests for extension of time for furnishing his return of income but also where the date fixed originally under section 139 (2) falls beyond the date specified in the proviso to sub-section (^) of section 139. The assessment years in this judgment were 1963-64 to 1969-70. 23. In (1979) 119 ITR 931 (Koipally Brothers v. Income Tax Officer, A’Ward, Thiruvalla) it was held by the Calcutta High Court that since section 139 (4) (a) refers to application of provisions of clause (iii) of proviso to sub-section (J) to the case of any person who does not fall within subsections (1) and (2) of section 139, but who furnishes the return within the period specified in clause (b) of section 139 (4), it can refer only to a case where there is non-compliance by a person with sub-sections (1) and (2). That would be the case where there is neither filing of return within the period mentioned in sub-section (1) of section 139 or within the time mentioned in the notice served under section 139 (2), but within the longer time contemplated under section 139 (4) (a) a return is voluntarily submitted by a person. In such a case, there is no question of his seeking extension of time for filing the return. In such a case, there is no question of his seeking extension of time for filing the return. To say that because of the reference to clause (iii) of section 139 (1) proviso the levey of interest under section 139 (4) (a) can be only in cases where there is an application for extension of time to file return would be to render the provision in sub-section (4) (a), in so far as it concerns the application of sub-clause (iii) of sub-section (1) of section 139, in operative and otiose. The learned Judge held that the interest could be charged under section 139 (4) (a) read with clause (iii) of the proviso to sub-section (1) of section 139. 24. The judgments relied upon by the petitioners counsel are distinguishable and cannot help the petitioner in the present case. 25. In Krishanlal Haricharan (supra), the assessment year was 1962-63. The assessee failed to file the return which was required to be submitted before 30-6-1962 under section 1?9 (1) of the Act. A notice was issued to the assessee under section 139 (2) calling upon him to submit a return before 18-3-1963 but no return was filed. In August, 1966, a notice under section 142 (1) of the Act was issued to the assessee to produce his accounts but the assessee prayed for time, which was not granted and the assessment was made under section 144 of the Act by the Income Tax Officer to the best of his judgment. The Income Tax Officer also directed the assessee to pay penal interest in view of these facts, it was held that the proviso to section 139 (1) (b) was only applicable when an assessee requests for time under the 3rd clause. But if no such request was made then the third clause bad no application. The provisions of section 139 (4) of the Act were not referred to or adjudicated upon in this judgment, which is distinguishable. 26. In Bahri Brothers (P.) Ltd. (supra), it has been held that if no return is filed within the time specified in the notice under section 139 (2) of the Act, but the same is filed later on and no extension of time had been applied for the assessee is not liable to pay interest under clause (iii) of the proviso to section 139 (1). The contention of the assessee in this judgment was that the return was filed under section 139 (4) of the Act but this contention was repelled on the facts and it was held that the return was filed under section 139 (2) of the Act. This judgment no where holds that in the case of a return filed under section 139 (4) of the Act no interest is chargeable and therefore, this judgment cannot help the petitioner. 27. In Mulakh Raj Bimal Kumar (supra), the provisions of section 139 (4) have again not been considered. This judgment has no application. 28. In National Hotel and Dilkusha Cabin (supra), also the assessee had not furnished the return under section 139 (4) of the Act. In this judgment, however, it has been held that in terms of sub-section (4) of section 139, clause (iii) of proviso to section 139 (1) was attracted but if the return is not filed within the time prescribed under section 139(4), no question of attracting the provisions of clause (iii) of proviso to section 139 (1) arises. The return in this particular case was filed after a period of four years from the end of the assessment year. Hence this judgment is again not helpful to the petitioner, 29. In view of the above discussion, it is held that in case a return is filed under section 139 (4) within the time allowed under section 139 (4) of the Act, then the Income Tax authorities are competent to charge interest under proviso (iii) of section 139 (1). 30. In para 4 of the petition the petitioner has stated that the return was submitted by him on 31-3-1971 under section 139 (4) of the Act for the assessment involved. Thus, we are of the opinion that for a return which is filed under section 139 (4) of the Act, the Income Tax authorities has jurisdiction to charge interest under proviso (iii) to section 139 (1) of the Act and we follow the view which has been taken in Ramlal Ramgopal (supra), Indian Telephone Industries Co-operative Society Ltd. (supra) and Kiopally Brothers (supra). 31. As a result of the above discussion, we find that there is no merit in this writ petition which is hereby dismissed. Petition dismissed.