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TMI Blog1992 (3) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... ing upon the assessee to explain the delay in filing his return late. No reply was filed by the assessee despite reminders from the ITO. Under the circumstances, the ITO concluded that the assessee had no reasonable explanation to offer. He levied penalty of Rs. 14,692 and passed the penalty orders dated 21-1-1988. Similar penalty was also levied with regard to assessment year 1984-85. The assessee appealed against the similar penalties under section 271(1)(a) read with section 274 for assessment years 1983-84 and 1984-85 before the D.C. (Appeals), Visakhapatnam, by a common order dated 13-9-1988, the D.C. (Appeals) confirmed the penalties. Against the confirmed penalties for assessment year 1983-84, the present appeal is brought by the assessee. The levy of penalty was challenged on the following grounds before us : 1. Share income particulars from the firm in which the assessee was a partner was not received in time. 2. Non-receipt of correct statement of account from M/s APSFC which had financed for the lorries plied by the assessee was also one of the causes for filing the return late. 3. The assessee filed his return voluntarily, paid all taxes as well as interest under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the delay was for reasonable cause is on the assessee and he failed to discharge the said burden and in those circumstances, the penalty levied is quite justifiable. He relied upon the following decisions : 1. Kunj Behari Lal Lalta Prasad v. ITO [1983] 144 ITR 583 (All.) 2. Addl CIT v. Mohammed Sons [1985] 154 ITR 220 (Raj.) 3. Haryana Iron Steel Rolling Mills v. CIT [1987] 164 ITR 779 (Punj. Har.). (5) Charging of interest does not preclude the other modes of ensuring compliance namely levy of penalty and prosecution and therefore the assessee's plea that he had paid all taxes and also the interest cannot be considered to be germane while considering his liability under section 271(1)(a). Reliance is placed upon Addl. CIT v. Dargapandarinath Tuljayya Co. [1977] 107 ITR 850 (AP)(FB) and CIT v. Gangaram Chapolia [1976] 103 ITR 613 (Ori.) (FB). 3. Thus we have heard the arguments advanced on both sides fully and completely. The learned counsel for the assessee in reply submitted that it is no doubt true that he estimated his income on lorry transport business. But in order to make a proper estimation he requires the interest particulars as well as the loan ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement of account was sent by the APSFC late would not have any relevance to estimate the income derived from the lorry business. The burden to prove the reasonable cause for the delay lies on the assessee. It is not simply enough for the assessee to set up an explanation. It is also necessary for him to prove the explanation which he had himself offered. Unless his explanation is fully proved he cannot absolve himself from the liability under section 271(1)(a). In a similar case which came up before the Bombay High Court in Vithaldas Jayawant's case the assessee in that case offered an explanation that on or about 15-6-1963 it had applied for extension of time and that the account books had not been received from its branches and the Chief Accountant had been ill. However, there was no receipt acknowledging receipt of any such application nor was a copy of such explanation produced. No evidence was adduced by the assessee as to when the books were actually received or as to the illness of the Chief Accountant. The Bombay High Court held that imposition of penalty was justified. Now in this case also there was no proof that the APSFC had sent the statement of account unreaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 139(1) and (2) was filed late or beyond time prescribed therefor. Even after the said return was subsisting after the Amnesty Scheme came into operation, another return was filed showing higher income than what was shown in the original return. However, it was either by inadvertence or by ignorance not superscribed that it was filed under Amnesty Scheme. In that case the assessee appears to be a partnership firm. Along with the partnership firm, all its partners also filed returns under Amnesty Scheme in which they have admitted more income and paid more taxes. The question before the Tribunal was whether the return filed under the Amnesty Scheme was really a return intended to be one filed under the Amnesty Scheme. Having regard to the facts and circumstances of that case, the Tribunal found that the said return should be held to be an amnesty return. Nowhere they have laid down the broad proposition that a return filed while the Anmesty Scheme is in operation should be deemed to be an amnesty return which really is the proposition for which the decision is sought to be made use of. Thus we hold that Rawoof Enterprises' case has no application at all to the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following in the head note of the decision at page 220: " Penalty can be imposed under section 271(1)(a) of the IT Act, 1961, for failure to furnish returns in time without "reasonable cause". Before a cause can be said to be reasonable, it must be found as a fact that a particular cause operated upon the mind of the assessee which prevented him from filing the return in time. The onus is on the assessee to show that he was prevented by sufficient cause from complying with the statutory requirement of filing the return in time. " In Kunj Behari Lal Lalta Prasad's case it was held by the Allahabad High Court that under clause (a) of section 271(1), penalty is not imposed for any concealment or furnishing inaccurate particulars and therefore no question of establishing mens rea by the revenue arises. The real cause for the delay is specially in the knowledge of the assessee and the revenue cannot be asked to establish that the cause was or was not reasonable. The assessee has to explain the cause for the delay and it is for the IT authorities to determine whether the cause was reasonable or not. The Hon'ble Punjab Haryana High Court in Haryana Iron Steel Rolling Mills' cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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