9911796707
TMI Blog2006 (9) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... aw the order dated September 26, 1974, passed by the Commissioner of Income-tax, Central and the order of assessment and penalty proceedings under section 271(1)(a) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") and the demand notice issued under section 156 of the Act and also the penalty orders passed on, October 7, 1974. The learned trial judge allowed the writ application as noted herein earlier and held that the penalty imposed by the income-tax authorities was not in accordance with law and direction was made on the appellants to withdraw and/or cancel the demand notice for realisation of the penalty first for the assessment years 1959-60 to 1965-66. From a perusal of the judgment under appeal, it appears to us that the writ petition was allowed and imposition of penalty under section 271(1)(a) of the Act was quashed only on the ground that the imposition of penalty was without jurisdiction in view of the fact that the interest was paid for late filing of the return for the aforesaid years. It was further held that the penalty under section 271(1)(a) of the Act could not be imposed against the writ petitioner/respondent as the Inspecting Assistant Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and CIT v. Jindal Brothers [1997] 223 ITR 289 (Patna). On the other hand, Mr. Agarwal appearing on behalf of the Revenue in support of this contention submitted that in view of the admitted fact that there was no application for extension of time for the second time, the decisions cited by Dr. Pal could not apply. In our view, the ratio of these decisions could not be applied as the interest was not charged by the Assessing Officer in his assessment orders for the aforesaid periods. From a perusal of the aforesaid decisions of different High Courts of India, it appears to us that in these decisions facts were completely different. In these decisions, admittedly, interest was charged and paid by the assessee along with the amount due as taxes in the present case on a perusal of the assessment order. We do not find that the interest was at all charged in not filing the return nor in the assessment year there was any question of payment of interest by the asses-see on the amount due from the assessment order. In that view of the matter, the principles on which the aforesaid decisions were rendered could not be applied in the admitted facts of this case. That being the position, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition on the grounds-(a) that the imposition of penalty was without jurisdiction in view of the fact that interest had been paid for late filing of the returns for the aforesaid years; and (b) that the penalty under section 271(1)(a) of the Act could not be imposed by the Inspecting Assistant Commissioner of Income-tax as he had no jurisdiction to do so and, only the Income-tax Officer was competent to impose penalty as per the provisions of section 271(1)(a) of the Act. During the course of arguments, counsel appearing for the respondent-assessee before the Division Bench of the High Court, the appellant herein, did not dispute the jurisdiction of the Inspecting Assistant Commissioner of Income-tax to impose the penalty for not filing the returns within the extended period. The Division Bench recorded the following findings "However, before us the learned advocate for the writ petitioner/respondent did not question the jurisdiction of the Inspecting Assistant Commissioner of Income-tax to impose penalty on the writ petitioner for not filing the return within the extended time, that was granted by the concerned authority." On the aforementioned first point, the Division B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it within the time allowed and in the manner required by sub-section (1) of section 139 or by such notice, as the case may be, or" Under this provision, in essence, three situations are contemplated in which penalty can be imposed, i.e., (i) where the assessee has without reasonable cause failed to furnish the return of total income which he was required to furnish under sub-section (1) of section 139; (ii) or where the assessee has without reasonable cause failed to furnish the return of total income which he was required to furnish by notice given under sub-section (2) of section 139 or section 148; and (iii) or where the assessee has without reasonable cause failed to furnish it within the time allowed and in the manner required by sub-section (1) of section 139. The following chart would indicate the dates on which the returns were required to be filed, the extended time/date within which they were to be filed and the dates on which they were actually filed. Year Date on which the return ought to have been filed The time was extended to file the return Date on which return actually filed 1959-60 18-06-1959 14-11-1959 04-02-1961 1960-61 20-06-1960 01-10-1962 30- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said judgment lends no assistance to the appellant as the principle on which the aforesaid decision has been rendered is distinguishable and cannot be applied to the admitted facts in the present case. In the present case, as mentioned above, the return was filed under sub-section (4) of section 139 of the Act. The question whether penalty under section 271(1)(a) could be levied on a return filed under section 139(4) fell for consideration before this court in Pradip Lamps Works v. CIT [2001] 249 ITR 797. The question posed in that case was as under: Question No. 2: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that notwithstanding that the return of income had been filed on February 6,1961, i.e., within the period permissible under section 139(4) of the Income-tax Act, 1961, the imposition of a penalty was justified as there was a delay for the purpose of section 271(1) (a) of the Income-tax Act, 1961?" It was answered in the following terms: "So far as the second question is concerned, the only submission is that since the assessee was entitled to and did file his return before making the assessment, no penalty should be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
