9911796707
TMI Blog1991 (5) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... the returns were thus, delayed and penalty proceedings were initiated. 4. The assessee's explanation for the delay was that Shri. S. K. Saboo, Chartered Accountant, who is a member of the family of the partners of the assessee firm, was dealing with the tax matters of the assessee and since he had been ill for a long time the returns could not be filed in time. This explanation was not accepted by the Assessing Officer who levied a penalty of Rs. 11,968 for assessment year 1982-83 and of Rs. 6,358 for assessment year 1984-85. The assessee appealed to the DC (Appeals) but failed. 5. The first contention raised by the learned counsel for the assessee before us was that there was a reasonable cause for delay in the filing of the returns fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f accounts was necessary and do not lay down any general principle which may be applied to the present case. 6. We have to see whether in the present case there was any reasonable cause for the delay in the filing of the returns. It is not disputed that Shri S.K. Saboo, Chartered Accountant, who at the hearing before us was said to be a brother of the partners of the assessee-firm, was handling the income-tax matters of the assessee. He is said to have developed pain in his back somewhere in December 1978. He had to go toBombayHospitalwhere his disease was diagnosed as Bone T.B. He was operated upon and advised rest. The assessee relied on a certificate of Dr. S.B. Gupta ofGwaliorcertifying as below : " This is to certify that Shri Sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s counsel Shri Bhuraria, who stated that when Shri Saboo resumed work he gave preference to his professional cases and the family cases were given a little go by resulting in delay under consideration. This itself shows that there was no reasonable cause for delay in the filing of the assessee's returns of income. 8. Illness or ill-health of a counsel cannot act as a panacea for all defaults. Each case has to depend on its own facts and if a professional is seriously ill it is not morally justified for him to keep his clients waiting and he must tell them frankly to go to some other professional for required services. Similarly a citizen cannot avoid fulfilling his legal obligations simply because its legal consultant is ill and so seriou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on going through the orders passed by the authorities below, as also the evidence laid before the first appellate authority as also before me, I am of the opinion that there is no reason to interfere with the orders passed by the first appellate authority." 10. That is an order passed by a Single Member and is, therefore, not binding on a division bench. Further, as a reading of the portion extracted above would show there is no finding that the illness of the counsel was a reasonable cause for the delay in the filing of the return of that year and it was on that finding that the penalty was cancelled. This order, therefore, is also of no assistance to the assessee. 11. It was then contended that in this case the assessee had paid ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble High Court of Delhi in P.N. Sikand v. CIT[1980] 126 ITR 202. The word 'contumacious' has not been used by the Legislature in section 271(1)(a) of the Income-tax Act, 1961 which punished delay in the filing of the return without reasonable cause. Therefore, the absence of a reasonable cause makes the assessee's conduct contumacious and therefore, in view of our finding arrived at above that the assessee had no reasonable cause for delay in the filing of the returns the assessee's conduct can be termed as contumacious. 12. The learned counsel for the assessee also placed reliance on Ganesh Dass Sreeram v. ITO [1988] 169 ITR 221 in which the Hon'ble Supreme Court held that interest levied under section 139(8) of the Act was not of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument has already been taken note of and, as demonstrated above, the judgment of the Hon'ble Supreme Court is in respect of a different levy, the nature of which, as mentioned by the Hon'ble Supreme Court itself, was different from that of a penalty. Reliance was also placed on an observation of the Hon'ble Supreme Court in the case of Good Year India Ltd. v. State of Haryana [1991] 188 ITR 403 at page 424, where the Hon'ble Supreme Court observed that it is well settled that a precedent is an authority only for what it actually decides and not what may remotely or even logically follow from it. These observations, as a matter of fact, go against the assessee because in the light of these observations the ratio of Ganesh Dass Shree Ram can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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