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TMI Blog1992 (5) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... further explained that for the aforementioned reason the assessee had to seek extension of time by moving applications in Form No. 6 from time to time. Eruption of dispute amongst assessee's partners was also pleaded as a factor contributing to the delay in filing the return. The ITO, however, did not feel satisfied with this explanation and held that the assessee had filed the return late without any reasonable cause. He accordingly levied penalty of Rs, 23,804 under section 271(1)(a) for default of 28 completed months. In appeal the DC(Appeals) took no different view of the matter and confirmed the levy of penalty. 3. Relying on Madras High Court decision in V.L. Dutt v. CIT [1976] 103 ITR 634 Mr. Monga, the learned counsel for the assessee, urged that undoubtedly mens rea was no longer an essential ingredient of the offence of default punishable under section 271(1)(a) but that did not absolve the ITO of his duty to consider and record a finding on the explanation offered by an assessee with regard to the delay committed in filing the return. He stressed that in the instant case the assessee had submitted quite a plausible explanation for not filing the return in the prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable under section 271(1)(a) we simply want to say that it is not necessary for the revenue to prove the presence of a guilty intention on the part of the assessee in his act of filing the return of income late. That means that as soon as a return is found to have been not filed within the prescribed or extended time the provisions of section 271(1)(a) would stand attracted automatically. But that can never mean that the assessee would be having no right to explain the circumstances under which he came. to file the return late. Indian Law presumes every citizen to be innocent unless the contrary is proved. This inherent presumption of innocence in favour of the citizen has been though substantially eroded and weakened by the latest trend in criminology yet the fundamental principle of natural justice that ' nobody should be condemned without being heard ' still rules and would always rule the field of penology in a civilised society, The judicial pronouncement that mens rea is not an essential ingredient of the default punishable under section 271(1)(a) does not at all adversely affect the right of an assessee to assert his innocence by explaining the circumstances under which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income for the year under consideration within the prescribed and extended time. Since the assessee is not found to have acted fraudulently or contumaciously in the discharge of its statutory obligation under the Act, it is not liable to be visited with any penalty under section 271(1)(a) of the Act. Assessment year 1982-83 [ITA No. 7009 ( Del )/88] 9. Return of income for assessment year 1982-83 was required to be filed by the assessee on or before 31-7-1982 but the same was not flied upto the date of making assessment on 5-3-1985. By its reply dated24-9-1986the assessee explained that due to non-receipt of the account of its commission income from its sister concern M/s. Anand Synthetics Pvt. Ltd. and on account of dispute amongst assessee's partners the return could not be filed. The ITO did not accept this explanation and held that the assessee was not prevented by any reasonable cause from filing the return in time. He accordingly levied penalty of Rs. 26,734 under section 271(1)(a) of the Act for default of 31 complete months. The CIT (Appeals) confirmed the penalty in appeal on that very ground. 10. Mr. Monga, the learned counsel for the assessee, and Mr. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) on the ground that the assessee had failed to comply with the " statutory notices issued to him ". 14. Mr. Monga submitted that due to the labour trouble in the sister concern wherefrom the assessee was earning commission income and on account of inter se dispute amongst assessee's partners, the assessee could neither put in appearance nor could it produce the required documents, account books or information before the ITO. It was submitted that the default was not deliberate but was committed under the pressure of unavoidable circumstances and was accordingly required to be excused. Mr. Mishra, however, urged that since the assessee had failed to offer any satisfactory explanation in that behalf the levy of penalty under section 271(1)(b) in both the years was sustainable. We, however, feel inclined to agree with Mr. Monga. 15. While setting aside the ex parte assessments in the case of the sister concern M/s. Anand Synthetics (P.) Ltd. for assessment years 1981-82 and 1982-83 the learned CIT(Appeals)-I,New Delhihad held that the assessee in that case was prevented by sufficient cause in not complying with the notices under section 142(1) and/or 143(2). There is no ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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