Hansaria, J.— The question of law involved in this writ petition is whether application for extension of time for furnishing return of income-tax under section 139 of the Income-tax Act, 1961 (for short the Act) can be filed after the expiry of the due date for filing of return. Such an application is contemplated by the provisos to sections 139( 1) and 139 (2) of the Act. As per Rule 13 of the Income-tax Rules framed under the Act such an application should be in Form No. 6. 2. While issuing Rule on 1.8.83 in the present case the Division Bench felt that, in view of the difference in opinion existing between the decision of this Court in Assam Frontier Veneer & Saw Mills vs. CIT, 104 ITR 749 and Karm Singh vs. CIT, 110 ITR 726, the case should be heard by a larger Bench of at least three Judges. This is how the matter has come before us. 3. Let us first see what was the view expressed by this Court in Assam Frontier. In that decision the Court, inter alia, noted the language of Form No. 6. whose material part is as below : “To The Income-tax Officer Under section 139(l)/(2)/(3) of the Income-tax Act, 1961, I/we have to file the return of my/our income/the income of in respect of which I/we am/are assessable for the assessment year commencing on the 1st April, 19-.-. ; before......19-.....for the reasons given below, it is not possible /it has not been possible for me/us to file the return before the said date. 2. It is, therefore, requested that time for furnishing the return may be extended upto......” 4. After noting the decision of the Andhra Pradesh High Court in T. Venkatakrishnaiah and Co. vs. C1T 93 ITR 297 this Court observed as below at page 484 : "We are in respectful agreement generally with the above observations and particularly with the one stating that it is the duty of an assessee to file his application for extension of time before the expiry of the due date of his return. In our opinion, the provisions of section 271(1) (a) of the Act are quite clear. In our opinion, the provisions of section 271(1) (a) of the Act are quite clear. By virtue of these provisions, a liability to penalty attaches to a person as soon as he, without reasonable cause, has failed to furnish the return of his total income in accordance with the notice given under sub-section (2) of section 139 within the time allowed. The proviso to section 139 (2) only enables the Income tax Officer to grant an extension, in his discretion, on an application made for the same. We, however, cannot agree that this proviso obliges the Income-tax Officer to consider an appli­cation for extension, however belatedly it may be made, and pass an order thereon, even when it has been made long after the due date of submission of the return. On the other hand, we also do not see that the Income-tax Officer would cease to have any power, under this 'proviso, to exercise his discretion to grant extension of time upon a belated application, provided it is filed before the assessment order". 5. The above would show that this Court had not stated in terms that belated application would not be maintainable and the same could be ignored by the Income-tax Officer. Indeed this is how the aforesaid observations of this Court were understood in CWT vs. Sitaram, 120 ITR 154. The decision of this Court in Assam Frontier was noted at page 157 and after quoting the relevant portion it was stated that according to the decision of this Court an application for extension of time could be filed till the order of assessment is made. This was also the view taken by the Patna High Court in the aforesaid case. The High Court of Punjab and Haryana in Karam Singh (supra) held after noting the language of Form No. 6 in which it has been stated, inter alia, that "It has not been possible" for the assestee to file return before the due date, that the application for extension of time may be filed even after the expiry of the period prescribed for . filing the return. It was pointed out that the proviso to section 139(1) or for that matter section 139(2) do not contain any limitation regarding the time by which Form No. 6 can be filed. filing the return. It was pointed out that the proviso to section 139(1) or for that matter section 139(2) do not contain any limitation regarding the time by which Form No. 6 can be filed. It was urged in Karm Singh by the learned counsel for the Revenue that the word "extend" used in the proviso implied that the application for extension of time should be within time originally prescribed. Such a result was not accepted by the Court which pointed out that the proviso does not contain any limitation to that effect. 6. In Sunder Das vs. CIT 127 ITR 646 a Division Bench of the Calcutta High Court also accepted that application for extension of time to furnish return can be filed even after expiry of the prescribed time. This view was taken after noting that no time limit has been imposed either by section 139 of the Act, or by Rule 13 of the Pulse, or by Form No. 6. 7. Keeping in view the different provisions mentioned above and the opinion of the different High Courts, we hold that an application in Form No. 6 can be filed along with the return after expiry of the prescribed date. 8. As in the present case the Income-tax Officer or for that matter the Commissioner of Income-tax worked under legal misconception we would remit the case back to the Commissioner of Income-tax for disposal of the petition in Form No. 6 in accordance with law. Though the Commissioner of Income-tax has stated something about merit of the cause shown also, we are of the view that this was done half heartedly as it has been stated in the impugned order that :- "(s) since Form No. 6 was not there before the ITO prior to the filing of the return, the question of his giving extension of time could not arise, and once the return is filed, then the question of giving extension of time becomes redundant". 9. In the result we answer the question of law set out in first para by stating the prayer for extension for filing return can be made even after expiry of the due date or along with the filing of return. We would, therefore, remit back the case to the Commissioner of Income-tax for disposing of the application filed in Form No. 6 by the writ petitioner on merit. We would, therefore, remit back the case to the Commissioner of Income-tax for disposing of the application filed in Form No. 6 by the writ petitioner on merit. While doing so, the order passed by Shri Prasad, Commissioner of Income-tax on the application filed by the petitioner in Form No. 12 shall also be borne in mind. Till this is done realisation of the penalty would remain stayed. Raghuvir, C.J.- I agree.