9911796707
TMI Blog1982 (4) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-12-1972, 7-2-1973 and 7-2-1973, respectively, as against the dates by which the assessee should have filed the returns which were as under : Assessment year 1968-69 30-9-1968 Assessment year 1969-70 30-9-1969 Assessment year 1970-71 30-9-1970 Assessment year 1971-72 30-9-1971 4. Since the returns were admittedly filed late, the period of delay worked out to 50, 38, 28 and 16 months, respectively, in relation to the four assessment years under appeal, the ITO, on the above facts, issued requisite notices to the assessee vis-a-vis proceedings under section 271(1)(a) of the Income-tax Act, 1961 ('the Act'). The notices remained uncomplied with and another opportunity was provided to the assessee vide notices dated 1-3-1979 and this time the assessee put in replies contending that the assessee was not aware and conversant with the provision of section 139 of the Act and thus the return was not filed in time. The ITO observed that the default was quite patent and this stand was since accepted by the assessee. He imposed penalties which worked out as under : Assessment year 1968-69 Rs. 51,976 Assessment year 1969-70 Rs. 77,375 Assessment year 1970-71 Rs. 32,105 As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for not filing the returns. 6. Since the assessee failed before the Commissioner (Appeals), we are seized of the matter. 7. We have heard the learned authorised representatives of the parties at length. We have also perused very carefully the orders of the lower authorities, as also the paper book since placed on our file, for and on behalf of the assessee which contains statement showing dates of filing of income-tax return, copies of the replies filed by the assessee to the ITO in response to show-cause notices issued under section 271(1)(a), copies of the letter written to the Commissioner (Appeals), copies of penalty order under section 271(1)(a) of the Act, copies of computation of total income, copies of the income-tax assessment orders, copies of the order passed by Shri Gopal Krishna, Metropolitan Magistrate, copy of the order in the case of Rachna made by ITAT, and details of income returned as also assessed and penalty imposed. 8. Shri S.C. Verma, the learned authorised representative of the assessee, reiterated the same contentions, as have been put forth for and on behalf of the assessee before the lower authorities. Additionally, he contended that for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue under section 276C of the Act, by Metropolitan Magistrate, Delhi, as also the order dated 11-1-1977 made by the same Metropolitan Magistrate which order is termed as an order of sentence. Further, strong reliance was placed on the ratio of the decision of the Punjab and Haryana High Court--a Full Bench decision--in the case of CIT v. Patram Dass Raja Ram Beri [1981] 132 ITR 671 and that of the Madhya Pradesh High Court in the case of H.H. Maharani Sharmishthabai Holkar v. Addl. CIT [1981] 129 ITR 13. 10. The learned authorised representative of the assessee exercised his right of reply, and further contended that as the records of all the six firms in which the assessee was a partner as also the records of the sole proprietary business of the assessee along with connected documents and papers were seized by the Income-tax Department on 25-5-1972, he could not file the returns. He further made a categorical assertion that the belated returns filed by the assessee were filed only after having an inspection of the documents and books of accounts, since, as yet, all the records were in the possession of the Income-tax Department. 11. Admittedly, the assessee filed the returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from Shri Jajodia was in the nature of capital receipt, although the assessee has been doing liaison work, does not stand to reason. This contention of the assessee also stands rejected. 14. As regards the contention of the assessee that since he has been penalised a sum of Rs. 5,000 by the learned Metropolitan Magistrate, Delhi, penalty under section 271(1)(a) was not imposable, suffice it to say that the proceedings for penalty taken against the assessee under the Income-tax Act are distinct from the criminal complaint, if filed against him even on the same facts. The two proceedings can, therefore, continue simultaneously and by this, the accused is not exposed to any 'double jeopardy' as has been held by their Lordships of the Delhi High Court in the case of Gulab Chand Sharma v. H.P. Sharma, CIT [1974] 95 ITR 117. 15. In view of the above ratio laid down by their Lordships of the Delhi High Court, the contention raised on behalf of the assessee, that since the assessee has been penalised in the sum of Rs. 5,000 by the learned Metropolitan Magistrate, Delhi, an amount which, in fact, was a fine imposed upon the assessee on a criminal complaint filed under section 276C by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully. If the return for the assessment year 1971-72 was filed belatedly, knowingly and wilfully on the same fact, it has to be held that for the assessment years 1968-69, 1969-70 and 1970-71 also, the assessee filed the returns of his income belatedly, knowingly and wilfully, more so, when return for the assessment year 1970-71 was filed on the same date as for the assessment year 1971-72. 17. As regards reliance by the assessee on the order in the case of Rachna, the Tribunal in that case was not informed of the fact that the records of that assessee as yet (i.e., as on the date of making of the order) were with the Income-tax Department and the assessee had filed the return after taking inspection of the account books and the records, and this vital information having not been brought to the notice of the Tribunal, the above order was made, holding that as from 25-5-1972 onwards (i.e., from the date of search and seizure operation) the records have been seized by the Income-tax Department, there was sufficient cause for the assessee to have filed the returns belatedly. On the facts of the assessee's case, we have already held that the assessee could have filed the returns earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Mysore and Orissa High Courts cannot come to the rescue of the assessee. We also reject this contention. 21. As regards the plea of bonafide belief in respect of the assessment years 1968-69 and 1969-70, the contention of the assessee that the assessee was under bonafide belief that the amounts received from Shri Jajodia were not taxable for these two years it stands belied by the very fact that for the assessment year 1968-69, the assessee has himself returned as per return of income filed, Rs. 16,370 as income from S. R. Traders, a sole proprietary business and Rs. 10,000 from horse racing, betting and this amount has been claimed as casual income and exempt. For the assessment year 1969-70, the income from sole proprietary business, viz., S.R. Traders, has been returned by the assessee as per return of income filed, Rs. 34,870 and Rs. 10,000 as income from racing and betting, which has again been claimed as casual income and exempt. From the above facts, it is very clear that the assessee has taxable income for the assessment years 1968-69 and 1969-70 and be ought to have filed the returns. More so, the assessee who knows what is casual income and what is exempt income, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal complaint titled as, 'ITO v. Shri B.D. Mehra'. The learned Metropolitan Magistrate, Delhi, sentenced the accused-assessee to pay a fine of Rs. 5,000 and in default of payment of fine, the learned Metropolitan Magistrate ordered that the accused will undergo six months rigorous imprisonment. 24. For the assessment year 1971-72, the assessee has filed the return belatedly on 7-2-1973 whereas for the assessment year 1970-71 also the return was filed on the same date and in that view of the matter, if the assessee has filed his return of income belatedly for the assessment year 1971-72 knowingly and wilfully, there is no reason why it should not be held that for the assessment year 1970-71 also the assessee has filed the return of income belatedly on 7-2-1973, knowingly and willingly. We hold so, with the result that we do hold that the assessee filed the returns for all the assessment years under appeal belatedly but without any sufficient cause or reason. 25. In view of our discussions as above, the impugned order of the Commissioner (Appeals), which is a common one in respect of all the assessment years under appeal, is upheld, since penalties have been levied and sustaine ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
