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TMI Blog2021 (5) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... of the grounds of the appeal on or before the date of hearing." 2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. 3. There is delay of 132 days in filing this appeal, for which the assessee filed an application for condonation of delay and the contents of application for condonation of delay reads as under: "1. In this connection it is submitted that the applicant assessee is AOP. In this case the Penalty of Rs. 2,53,700/- u/s 272A(2)(e) was imposed on dated 02.11.2018 by the JCIT(E) and raised the demand. Against which the assessee had filed an appeal before the Id. CIT(A)-3, Jaipur. The Id. CIT(A)-Jaipur has passed the order of appeal on dt. 06.09.202, which was sent by post at the address of assessee and may be served any other person about on dt. 09.09.2019. Hence the appeal was to be filed on or before Month of March 08.11.2019 but the same is being filed on 19.03.2020 i.e by delay of about 4 Month and 11 days late. 2. The reason of late filing of appeal was that as the order not received by the assessee and on inquiry it has come to know that the said order has been sent by the office of CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 30 BCAJ 922, Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi and Anothers 118 ITR 507 . That it is also settled that for the mistake of the Counsel, the party cannot be suffered. Reliance on Mahaveer Prasad Jain v/s CIT, 172 ITR 331(MP), Concord India Insurance Co. Ltd v/s Smt. Nirmala Devi, 118 ITR 507(SC), Kripa Shankar v/s CIT/CWT 181 ITR 183(AII), N. Balakrishnan v/s M. Krishanmurthy 7 SSC123. 8. The Hon'ble Jaipur Bench of ITAT has also condoned the dealy in the case of Ganesh Himalaya Pvt.Ltd. v. ACIT 22 Tax World 415 (Jp) where the filing was delayed because the son of the Managing Director had become victim of some misdeeds committed by the Holigans, particularly when on the similar points in the earlier four years, the appeals were filed in time. In the instant case also, the appeal could not be filed in time because of the above reasonable cause and was a sufficient cause and there was no melafide intention. 9. Recent Decision of Apex Court: in a recent decision, the apex court have again reiterated that the expression "sufficient cause" should receive a liberal construction. The Hon'ble court have also held that advancing of substantial just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year under consideration. However, return in this case was filed on 12/07/2017, thus, it was late by 2537 days. Accordingly, after issuing show cause notice and providing opportunity of hearing, penalty U/s 272A(2)(e) of the Act was levied upon the assessee vide order dated 02/11/2018. 8. Aggrieved by the order of the A.O., the assessee carried the matter before the ld. CIT(A) and the ld. CIT(A) after considering the facts of the present case, dismissed the appeal filed by the assessee by upholding the imposition of penalty U/s 272A(2)(e) of the Act. Against the said order of the ld. CIT(A), the assessee has preferred the present appeal before the ITAT. 9. Grounds No. 1 and 2 of the appeal raised by the assessee are interrelated and interconnected and relates to challenging the order of the ld. CIT(A) in confirming the penalty levied U/s 272A(2)(e) of the Act, therefore, we thought it fit to dispose off these grounds by this consolidated order. 10. The ld AR appearing on behalf of the assessee has reiterated the same arguments as were raised before the ld. CIT(A) and also relied on the written submissions filed before the Bench and the same is reproduced below: "1. Correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C). "That in order to impose penalty for failure to carry out a statutory obligation is the result of quasi criminal proceedings and penalty will not ordinarily be imposed, unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. The Supreme Court has further laid down that penalty will not be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority and is to be exercised judiciously and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed the authority competent to impose the penalty, will be justified in refusing to impose penalty when there is a technical or venial breach of the provisions of Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute."The assessee in any case entertained a bonafide belief and advised of the counsel that the assessee is an education institute and income falls and exempt u/s 10(23C)(iiiad) and assessee is not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment years, assessee's belief that it was not obliged to file return under s. 139(4A) was bona fide and this constituted reasonable cause-Penalty under s. 272A (2) (e) was not therefore, leviable-Assessee voluntarily filed return for all the years on the advice of new chartered accountant who had enlightened the assessee the correct legal position. In the the case of Akali Baba Phool Singh Educational Trust vs. DDIT (EXEMPTION) (2010) 29 CCH 0679 Del Trib (2011) 43 SOT 0700 Penalties-Non-filing of returns under s. 273B-Assessee was under the bona fide belief that its incomes is exempt under s. 10(23C)(iiiab) and was not required to file return of income-As per provisions of sub-cl. (iia) of subs. (24) of s. 2, it is found that reference has been made to various other clauses of sub-s. (23C) of s. 10 but no reference has been made to cl. (iiiab) of sub-s. (23C) of s. 10-As per provisions of sub-s. (4A) of s. 139, there is no specific reference to those assessees who are covered by the provisions of s. 10(23C) (iiiab) but for reference been made to ss. 11 and 12-Hence, assessee might have been having a bona fide belief that the provisions of s. 139(4A) are not applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the orders passed by the revenue authorities. As per facts of the present case, as per the Revenue, the assessee was required to file its return of income U/s 139(4C)(e) of the Act by 31/07/2010. However, the return in this case was filed by the assessee on 12/07/2017, therefore, there was a delay of 2537 days and for which penalty U/s 272A(2)(e) of the Act was imposed after providing opportunity of hearing to the assessee. Whereas on the contrary, the ld AR of the assessee has submitted that the assessee is a charitable trust working in the area of imparting education and it was under bonafide impression that its income is exempted. Income of the assessee does not excess Rs. 1.00 crore which is exempt U/s 10(23c)(iiiad) of the Act, therefore, according to the assessee, it was not obliged to file return of income U/s 139(4A) of the Act. Under these circumstances, it was submitted that the assessee is bonafide and constitute reasonable cause in not furnishing the return of income. We have further perused that the return of income filed by the assessee on which no income tax is payable, thus the assessee cannot be in default for late filing of return particularly when tax is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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