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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 ..... tion 271(1)(c) of the Act. 3. The brief facts of the case are that the assessee filed his return of income for assessment year 2004-05 on December 12, 2006 showing income of Rs.4,99,140 and for the assessment year 2005-06 filed a return of income on December 31, 2007 showing income of Rs. 10,49,250. The Assessing Officer issued notice under section 142(1) of the Act for the assessment year 2004-05 on December 27, 2004 and for the assessment year 2005-06 on February 1, 2007. As the return of income was filed beyond the time allowed under the Income-tax Act, he treated the return filed as invalid. The assessment was framed for both years under consideration by passing an order under section 144 of the Act determining the income for both year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d penalty of Rs. 1,23,742 in the assessment year 2004-05 and Rs. 3,23,995 in assessment year 2005-06 being the minimum amount of penalty leviable. 6. The assessee went in appeal before the Commissioner of Income-tax (Appeals) for both years. The assessee argued that the penalty was not leviable as per Explanation 3 to section 271(1)(c) of the Act because the assessee had furnished a return within the period specified in section 153(1). It was also argued that Explanation 3 to section 271(1)(c) was not applicable to the case of the assessee and levy of penalty by the Assessing Officer evidently based on the said Explanation is invalid. The assessee argued that the penalty cannot be levied for non-payment of advance tax. It was also submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income by the due date and did not pay any advance tax. This act of the appellant constitutes concealment under section 271(1)(c) because when there was a taxable lease rental income the appellant concealed it by not furnishing his return and continued to do so even after a notice under section 142(1) was issued by the Assessing Officer and the appellant was repeatedly reminded by him. The explanation that he had reasonable cause as he was away at Tanjavur and his representative was at Chennai is untenable and clearly an afterthought because such a submission was never made before the Assessing Officer during the assessment/penalty proceedings though the authorised representative for the appellant was appearing before the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en if a return is filed in terms of sub-section (4) ; section 276CC refers to "due time" in relation to sub-sections (1) and (2) of section 139 and not to sub-section (4). He further submitted that on the earlier occasion when the matter came up for hearing before the Tribunal, the Tribunal has specifically asked as to whether the returns in the earlier assessment years were filed in time by the assessee or not. He submitted that in spite of a specific query raised by the Bench, the authorised representative for the assessee, even till today, has not filed the relevant assessment orders or any other evidences evidencing that the returns in the earlier years were filed in time by the assessee. He submitted that the assessee is a habitual def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfaction as required under law was recorded by the Assessing Officer in the relevant assessment order before initiating penalty under section 271(1)(c) of the Act. We find that a perusal of the relevant assessment order shows that the Assessing Officer has recorded that "penalty proceedings under section 271(1)(c) of the Act is initiated separately". Thus, in view of the provisions of section 271(1B) of the Act which was inserted in the Act with retrospective effect from April 1, 1989 and which provides that when an addition is made on assessment and penalty proceeding under section 271(1)(c) of the Act are initiated in the course of the assessment, then the same shall constitute satisfaction of the Assessing Officer for initiation of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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