9911796707
TMI Blog1980 (6) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... have filed the return of his income by 31st July, 1973. The assessee has neither filed the return in time nor requested for grant of time as extension, but he filed the return on 19th July, 1975, as such, according to the Revenue, the return was a delayed and belated one by a period of 23 months. The assessment was made under s. 143(3) of the Act, on 24th Dec., 1975 on a total income of Rs. 29,740 which in appeal by the assessee was reduced to Rs.28,510. Proceedings for late filing of return was taken against the assessee and the assessee submitted a written reply and pleaded sufficient cause, inter alia, on the ground that there was dispute amongst the partners of the firm M/s Akhil Chandra Ghosh, Kailashahar. The ITO did not find favour w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to disputes inter se partners, the return of the income of the firm based on accounts was filed on the same day when the return of income of the assessee was filed by him in his individual capacity. He also contended that there has been no proceedings for the late filing of return in the case of the firm, as such the same view be taken of in the case of the assessee too. Shri Bharadwaj, further contended that the assessee was prevented by sufficient cause since there was a dispute inter se partners and for the said purpose he relied upon the copy of the duly sworn affidavit dt. 3rd Feb., 1978, since filed by the assessee before the ITO at the penalty proceedings stage. He also contended that this affidavit though filed with the ITO during p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat material information as to his income but none of the lower authorities has discussed the affidavit, seemingly they have not taken due cognizance of it. Affidavit may be tendered as an affidavit before an IT Authority and when the said authority regards the same as not sufficient as to the contents thereof, the said authority should cross-examine the deponent and if dis-satisfied should call upon the assessee to produce documentary evidence in support of the contentions facts contained in the affidavit but when no such thing is done, the affidavit by itself has to be regarded as sufficient proof of the facts contained therein. 7. No material has been placed before us to controvert the facts contained in the affidavit and we are satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion and do hold, of course, respectfully and usefully following the ratio of the decision of the Hon'ble Gauhati High Court in the case of Smt. Indu Barua, that the Department has failed to establish prima facie by producing some evidence that the assessee is liable for payment of penalty for default to file return within time by conscious disregard of the provisions of law and the department has also failed to discharge the onus which lay on the department to prove the above facts. Accordingly, the orders of the lower authorities levying and sustaining penalty on the assessee for the assessment year under appeal cannot be sustained. 9. In the result, the penalty levied upon the assessee is cancelled and the appeal by the assessee succ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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