9911796707
TMI Blog2019 (12) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... rs under consideration, therefore, the Assessing Officer (AO) has issued the notice under section 271 of the Income Tax Act, 1961 ("the Act"). The AO issued the show cause notice dated 16.10 2017 for the AYs. 2012-13 to 2015-16 directing the assessee to explain as to why the penalty should not be levied for non furnishing of the returns as required under section 139(1) of the Act. In response to which the assessee filed his reply stating that he was salaried employee working in TCS. During the relevant previous years, he was on assignment outside the headquarters at Bangalore including foreign assignment with periodical intervals which has stretched for months together. Therefore the assessee submitted that he could not focus himself on his legal objects for filing his returns of income which resulted in filing the returns belatedly. The assessee further submitted that he is having only income from salary and the tax was deducted at source by way of Tax Deduction at source(TDS) and always the returns resulted in refund hence, submitted that there was no loss to the Revenue. The assessee requested to treat the return filed under section 139(4) of the Act as return under section 139( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person shall pay, by way of penalty a sum of Rs. 5000/-. Whereas the appellant has filed his returns of income u/s.139(4) tor A.Y.2012-13 on 29/03/2014 and for A.Y.2014-15 on 27.03.2016 declaring total incomes of Rs. 5,50,074/- and Rs. 6,41,498/- respectively: Further, the appellant relied on the Hon'ble Bombay High Court Trustees of Tulsidas Gopalji Charitable and Chaleshwar Temple Trust Vs. CIT wherein it was held that on a careful reading of section 139 of the Act, we are of the clear opinion that sub-sections (1) and (4) of section 139 have to be read together and on such reading, the inevitable conclusion is that a return made within the time specified in sub-section (4) has to be considered as having been made within the time prescribed in sub-section (1) or sub-section (2) of Sec.139 of the Act. CIT Vs. Kulu Valley Transport Co. (P) Ltd. (1970) 77 ITR 518 (SC) followed. In view of the factual position and legal matrix of the cases under consideration the penalties u/s.271 F of the Act levied by the Assessing Officer is not justified. Therefore, the grounds of appeals are hereby allowed." 5. Subsequently, the AO filed a rectification petition under section 154 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal hearing, the Ld. AR vehemently pressed this ground stating that once the Ld.CIT(A) has taken conscious decision relying on the decision of Hon'ble Bombay High Court in favour of the assessee and then changed his opinion in rectification proceedings which is not permissible under section 154 of the Act. On the other hand, the Ld.DR supported the order of the Ld.CIT(A). We considered the rivals submissions and found from the order of the Ld. CIT(A) that the Ld. CIT(A) has taken a decision after considering the law laid down by the Honorable Bombay High Court in the case of Trustees of Tulsidas Gopalji Charitable and Chaleswar Temple Trust vs. CIT (supra), wherein the Hon'ble High Court of Bombay held that sub section (1) & (4) of section 139 of the Act have to be read together and on such reading the inevitable conclusion is that the return made within the time specified in sub section (4) of the Act has to be considered as having been made within the time prescribed time under sub section (1)/(2) of section 139 of the Act. On rectification petition filed by the AO, the Ld. CIT(A) taken a different view and held that return of income filed under section 139(4) of the Act wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The AO did not convince with the explanation of the assessee hence, levied penalty of Rs. 5,000/- under section 271F of the Act. The assessee went on appeal before the Ld. CIT(A) and the Ld. CIT(A) confirmed the penalty. Against which the assessee filed appeal before this tribunal. 9. During the appeal hearing, the Ld.AR reiterated the submission made before the AO which was discussed in ITA Nos. 2604, 2605 & 2606/Bang/2018 for Assessment Years 2012-13, 2014-15 & 2015-16 of this order and requested to drop the penalty. Ld.AR further submitted that the Ld. CIT(A) relied on the Prakash Nath Khanna vs. CIT (supra), the facts of the case law relied upon by the Ld. CIT(A) are distinguishable and not applicable to the assessee's case. Calling our attention to the decision of Hon'ble Apex Court in the case of Prakash Nath Khanna vs. CIT (supra), the Ld. AR submitted that in the case of Prakash Nath Khanna the issue involved was relating to the prosecution and not the levy of penalty u/s 271F. therefore, argued that the decision of Hon'ble Supreme Court has no application in the assessee's case. The AR submitted that the assessee was engaged in the employment which did not permit him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 cancelled the penalty following the decision of Hon'ble High Court of Bombay in the case of Trustees of Tulsidas Gopalji Charitable and Chaleswar Temple Trust vs. CIT (supra), wherein the Hon'ble High Court of Bombay held that the combined reading of s. 139(1) & 139(4) of the Act, the conclusion to be drawn is return made within the time specified in sub s. (4) of the Act has to be considered to have been made within the time prescribed sub s. (1) of 139 of the act. The Ld. CIT(A) relied on the decision of Prakash Nath Khanna vs. CIT (supra), which is related to the case of the prosecution and not the penalty u/s 271E of the Act. The department has not made out the case that the assessee required to pay tax which remained unpaid. The income tax return was refund return and the order of Hon'ble ITAT, Kolkata in the case of Mrs. Manju Kataruka vs. ITO in ITA No.1955/Kol/2003 dated 7.04.2004, held that when there was a refund due, non filing of return of income within specified time u/s. 139(1) of the Act has to be considered as a bonafide belief and the said bonafide belief is to be treated as reasonable cause for non furnishing the return before the end of the assessment year. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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