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TMI Blog2013 (12) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... ty u/s 271(1)(c) shall not be levied when the return is not filed within the time allowed under section 139 when the assessee had taxable income - The default is not mitigated by filing the return before the time limit of completion of assessment specified under section 153(1) - Decided against assessee. - I.T.A.Nos.367 & 368/Mds/2011 - - - Dated:- 28-9-2012 - SHRI N.S. SAINI AND SHRI CHALLA NAGENDRA PRASAD, JJ. For the Appellant : Shri K. Ravi For the Respondent : Dr. S. Moharana, CIT/DR Order N. S. Saini (Accountant Member).- These are the appeals filed by the assessee against separate orders of the Commissioner of Income-tax (Appeals)-II, Chennai, dated December 15, 2010. 2. In both appeals, the assessee has raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y particulars of income or furnished inaccurate particulars of such income and that the Assessing Officer completed the assessment under section 144 of the Act accepting the income returned which shows that there was no concealment of income by the assessee. 5. The Assessing Officer rejected the submissions of the assessee by observing that the assessee filed return of income only after the issue of notice under section 142(1) and that too after a lapse of time allowed for filing a valid return. He also observed that though the assessee had taxable income he had not paid any advance tax but paid the tax with interest in December 2006 for the assessment year 2006 for the assessment year 200405 and in December 2007 for the assessment year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act by adding a line at the bottom of the assessment order is done in a mechanical manner without indicating that there was due application of mind prior to the same. It was further submitted that the assessee being away at Tanjavur leaving his authorised representative at Chennai had a reasonable cause for the delay in filing his return but he had paid the taxes before filing the return and therefore, levy of penalty under section 271(1)(c) of the Act was not valid. 7. The Commissioner of Income-tax (Appeals), after considering the submissions of the assessee, confirmed the penalty by making similar observations except change in figures in both the years under consideration as under : "11. I have considered the submissions of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court in the case of Maya Rani Punj v. CIT [1986] 157 ITR 330 (SC), submitted that the hon'ble Supreme Court has held that in view of the language used in the section, the position was beyond dispute that the Legislature intended to deem the non-filing of the return to be a continuing default-the wrong for which penalty was to be visited, commenced from the date of default and continued month after month until compliance was made and the default came to an end. He further submitted by relying on the decision of the hon'ble Supreme Court in the case of Prakash Nath Khanna v. CIT [2004] 266 ITR 1 (SC), that the hon'ble Supreme Court has held that infractions which are covered by section 276CC relate to non-furnishing of return wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, who is having scant regard for the law, will come to respect the law and comply with the same by filing the returns in time. 10. We have heard the rival submissions and perused the orders of the lower authorities and materials available on record. In the instant case, the Assessing Officer levied penalty under section 271(1)(c) of the Act of Rs.1,23,742 in the assessment year 2004-05 and Rs. 3,23,995 in the assessment year 2005-06 on the ground that the assessee has filed no valid return of income within the time allowed under the Income-tax Act, though the assessee had taxable income and in spite of the fact that notice under section 142(1) was issued to the assessee. 11. On appeal, the Commissioner of Income-tax (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case is the same as that shown by the assessee in the return of income. We find that the assessee has filed its return of income for the assessment year 2004-05 on December 12, 2006 and for the assessment year 2005-06 on December 31, 2007. Thus, the aforesaid returns of income were not valid returns as they were not filed within the time allowed under section 139(4) of the Act and in view of Explanation 3 to section 271(1)(c) of the Act the entire assessed income constitutes concealed income. The last argument of the authorised representative for the assessee was that the returns were filed within the time allowed under section 153(1). However, the authorised representative could not point out why penalty under section 271(1)(c) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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