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TMI Blog2014 (1) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... al questions of law arise for consideration. i) Whether on the facts and circumstances of the case, is the Appellate Tribunal justified in sustaining the penalty imposed u/s.271(1)(c) for concealment of income/furnishing of inaccurate particulars of income for the Assessment Years? ii) Should not the Appellate Tribunal have held that the order imposing penalty was barred by limitation by virtue of the proviso to Section 275 of the Act? iii) Has not the Appellate Tribunal erred in relying on Explanation-3 to Section 271(1)(c) without noticing the amendment to the above Explanation with effect from 01.04.2003 and in sustaining the penalty on that ground? 3. The facts that led to the filing of the present appeals are under:- Appellant ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95-96 to 1997-98. So far as assessment year 1998-99, notice of penalty was issued along with assessment order dated 29.03.2001. Then for the assessment years from 1999-2000 to 2001-02, penalty notice came to be issued on 29.03.2004. 5. As stated earlier, so far as the quantum appeals before the Tribunal is concerned, the judgment was on 27.09.2007. The assessee was not filing return of income regularly. However, no books of accounts were also maintained. 6. It is also not in dispute that he was required to maintain books of accounts whenever the income exceeded a particular limit. In response to penalty notice, when the assessee did not file returns, the Assessing Officer made a detailed enquiry by collecting information from various hote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reflected that he was supplying chicken to various hotels and shops, but not a single paper was maintained in this regard. These were the main reasons for imposition of penalty at 150%. So far as the penalty proceedings, the Assessing Officer imposed 1= times the tax payable as penalty which came to be reduced to 100% by the First Appellate Authority, which was confirmed by the Tribunal in the above appeals. 8. Learned counsel for the appellant-assessee raised two fold arguments one is with regard to the limitation placing reliance on Section 275 and according to him, the Explanation to Section 275(1) was introduced much later than the year in which penalty proceedings were initiated, therefore the question of deemed concealment would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the relevant assessment or other order is the subject matter of revision under Section 263 [or Section 264] after the expiry of six months from the end of the month in which such order of revision is passed;] [(c) in any other case, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed, or six months from the end of the month in which action for imposition of penalty is initialled, whichever period expires later.] [(1A) In a case where the relevant assessment or other order is the subject-matter of an appeal to the Commissioner(Appeals) under section 246 or section 246A or an appeal to the Appellate Tribunal under section 253 or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 274 shall apply in respect of the order imposing or enhancing or reducing penalty under this sub-section.] [(2) The provisions of this section as they stood immediately before their amendment by the Direct Tax Laws(Amendment) Act, 1987 (4 of 1988), shall apply to and in relation to any action initiated for the imposition of penalty on or before the 31st day of March,1989.] [Explanation - In computing the period of limitation for the purposes of this section,-- (i) the time taken in giving an opportunity to the assessee to be re-heard under the proviso to section 129; (ii) any period during which the immunity granted under section 245H remained in force; and (iii) any period during which a proceeding under this Chapter for the levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer, after completion of the reassessment proceedings. 12. Deemed concealment is explained under Explanation 3. If all the conditions at Explantaion 3 are complied with, even if the assessee had filed the returns, if the returns are filed beyond the period of limitation or the time prescribed then the department by operation of law has the benefit of opining deemed concealment. 13. In the present case, the facts reveal that in response to the notice under Section 148 of the Act, the assessee never filed returns, therefore question of filing return beyond the period prescribed would not arise in the present case. Reading of Section 271(1)(c) itself indicates whether there is concealment of income or not as reflected in the material coll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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