9911796707
TMI Blog1989 (9) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... but the same has been filed on 23rd of September, 1983 resulting in a delay of 14 months. The reason for the delay in filing of the return given by the assessee before the authorities below was that the return along with the other papers had been handed over to the counsel who was to file the return with the ITO at Shivpuri. The counsel who was residing atGwaliormisplaced the return along with papers handed over to him. Therefore, the assessee contended that the delay was for a reasonable cause and that there was no conscious default by the assessee. 3. It has further been contended in the written submissions before us that the tax paid in advance was more than the assessed tax, and accordingly penalty u/s 271(1)(a) could not be imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Venkata Krishnayya Naidu Son v. CIT [1984] 150 ITR 545/19 Taxman 369 the Andhra Pradesh High Court has also taken a similar view. The Madras High court in the cases of CIT v. Fomra Bros. [1980] 122 ITR 312 and Addl. CIT v. Murugan Timber Depot [1978] 113 ITR 99 has also taken a view favourable to the assessee. HoweverPatna, Madhya Pradesh,Bombay,Calcuttaand Gujarat High Courts in the following cases have taken a contrary view :--- 1. Jamunadas Mannalal v. CIT [1985] 152 ITR 261/20 Taxman 437 (Pat.)(FB) 2. Jamunadas Mannlal v. CIT [1987] 164 ITR 66 (Pat.) 3. Delux Publishing Co. v. Addl.CIT [1981] 127 ITR 782 (MP) 4. CIT v. Priya Gopal Bishoyee [1981] 127 ITR 778 (Cal.) 5. CIT v. R. Ochhavlal Co. [1976] 105 ITR 518 (Guj.) 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd any tax deducted source. Explanation 2: For the purposes of this sub-section, where the assessee is a registered firm or an unregistered firm which has been assessed under clause (b) of section 183, the tax payable on the total income shall be the amount of tax which would have been payable if the firm had been assessed as an unregistered firm. Section 271(a): Failure to furnish returns, comply with notices, concealment of income, etc.--- (1) If the Income-tax Officer or the Appellate Assistant Commissioner (or the Commissioner) (Appeals) in the course of any proceedings under this Act, is satisfied that any person (a) has without reasonable cause failed to furnish the return of total income which he was required to furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is imposable in the following circumstances : (i) Return is either filed late or not filed at all ; and (ii)Tax paid in advance or deducted at source is less than the tax determined on assessment. Sub-section (2) of section 271 provides that where the person liable to penalty is a registered firm penalty imposable on the firm would be on that firm if it was an unregistered firm. 7. Thus it is evident that there is no material difference in section 139(8) and section 271(1)(a) except that interest u/s.139(8) is chargeable where there is a default whereas u/s.271(1)(a) it is open to the assessee to show reasonable cause for the delay and if the authorities are satisfied about the reasonable cause penalty would not be attracted. 8. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount. The Hon'ble High Court has held that in the case of registered firms where the assessed tax is covered by the tax deducted at source or tax paid in advance penalty u/s. 271(1)(a) cannot be imposed and a firm cannot be treated as unregistered firm for purposes of levy of penalty u/s. 271(1)(a). We accordingly delete the penalty imposed u/s. 271(1)(a) by the ITO and confirmed by the AAC. 11. Even on merits the assessee has a case. The explanation of the assessee that the delay had occurred due to misplacing of papers by the counsel coupled with the fact that the assessee had paid tax in advance and would not have been benefited by deferring a return should have been considered as reasonable for deleting the penalty. In this case pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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