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TMI Blog2014 (8) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... es not arise or require consideration when we examine the question of penalty u/s 271 (1)(a) of the Act - Penalty is a civil liability and is imposed upon infraction of law when conditions stipulated in the provision are satisfied - Mens rea is not an requirement to impose penalty under Section 271(1)(a) of the Act - As far as the factum that the return was delayed, the same is accepted and is not in dispute - Justification and cause for the delay is the issue in dispute - Facts of the present case and excuse given by the appellant has been noticed and rejected – Decided against Assessee. - ITA 34/2002 - - - Dated:- 12-8-2014 - Sanjiv Khanna And V. Kameswar Rao,JJ. For the Appellant : Mr. Sanjeev Ralli and Mr. Aayush Juneja, Advocates. For the Respondent : Mr. Sanjay Kumar, Jr. Standing Counsel. ORDER Sanjiv Khanna, J. (Oral) This appeal, by the assessee, impugns imposition of penalty, under section 271(1)(a) of the Income Tax Act,1961 ( Act, for short), for late filing of return in relation to assessment year 1984-85. By order dated 17th September, 2002, the following substantial question of law was framed:- Whether the Income-tax Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months, cannot be accepted. The assessee had not filed Form No.6 seeking extension of time nor had they justified and satisfactorily explained the cause for the delay. 5. Learned counsel appearing for the appellant-assessee submits that the facts have not been properly understood and appreciated by the Tribunal. He states that the appellant-assessee was in fact in a dilemma and did not know how to treat and claim the amount received from the DDA. He accepts that ₹ 2,93,004.13 was received from the DDA on account of the Asian Games Project in the present assessment year i.e. 1984-85 and not in the assessment year 1983-84, but states that the revised return for assessment year 1983-84 was filed on 1st November, 1985 taking into account the losses suffered in the Asian Games Project and net loss of ₹ 9,35,200/- was declared in the said return. The original return for assessment year 1983-84 was filed on 29th October, 1984, declaring positive income of ₹ 72,995/-. He has drawn our attention to a chart enclosed as Annexure A-4 and states that in case income/receipt of ₹ 2,93,004/- stands excluded from the returned income of ₹ 3,91,440/-, the net taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-assessee accept and admit that they had received payment of ₹ 2,93,004.13/- from the DDA in the assessment year in question. Thus, as per the system and method of accounting followed by the appellant-assessee, this amount had to be included as income for the assessment year 1984-85. Therefore, the submission that dilemma or lack of clarity was the reason, for not filling in time the return for assessment year 1984-85, has not been substantiated and established. Assuming that the appellant-assessee was in doubt, still return of income for the assessment year 1984-85 could have been filed on time and then if required, revised. This was done in the assessment year 1983-84. Argument of the appellant-assessee that they were in dilemma on how to compute the income of the assessment year 1984-85, does not explain the return filed for the assessment year 1983-84 on 29th October, 1984. If the return for the assessment year 1983-84 could have been filed, though the assessee claims that they were not sure how to treat the loss as they had not received payment from the DDA, the return for the assessment year 1984-85 could have been surely and certainly filed. This reason/cause had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int of mala fides or element of recklessness or ruse. In the said case, the penalty imposed was set aside. 9. In the facts of the present case, we do not find that the appellant-assessee in the course of the reply had stated that they had taken legal advice, and could not ascertain and compute their income and therefore could not file their return for assessment year 1984-85. No details regarding said legal advice including the name of person, who had rendered the same, was stated and brought on record. The appellant-assessee in their reply to the notice for penalty had referred to the return for the assessment year 1983-84 and the fact that the original return was filed taking into account payment received from DDA. However, this cannot be a ground for not filing the return for the assessment year 1984-85, specially, when we notice that the return for the assessment year 1983-84 was originally filed on 29th October, 1984 and the revised return was filed on 1st November, 1985. However, the return for the assessment year 1984-85 was filed on 2nd July, 1986. The appellant-assessee had the opportunity to file Form No.6, which was applicable and could have given reasons for delay an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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