9911796707
TMI Blog1982 (6) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... reason of omission or failure on the part of the assessee to disclose fully and truly all material facts in respect of the year under consideration the income chargeable to tax escaped assessment. Accordingly, he issued notice u/s 148 of the IT Act, 1961 on 10th March, 1975. The said notice was served on 13th March, 1975. According to the service of the said notice, return was to be filed on or before 12th April, 1975, but it was filed on 25th Oct., 1978. Thus there was a delay of 42 months in filing the returns. The ITO at the time of completing the reassessment, initiated penalty proceedings u/s 271 (1) (a) of the IT Act. 4. The ITO issued a show cause notice u/s 274 r/w s. 271 (1) (a) of the Act, 1961. No explanation was given after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The ld. AAC after considering the material on record, and the contention of the appellant came to the conclusion that simply because notice u/s 142 (1) was issued, no presumption can be made that a return was already on the record. He further held that the assessee failed to produce any evidence to show that the return in pursuance of service of notice u/s 148 was filed within time. 9. The ld. AAC after considering the material on record came to the conclusion that the contention of the appellant is not supported by any evidence whatsoever. According, to him the conclusion of the ITO that the return is filed on 25th October 1978 was original return correct. The ld. AAC consequently substained the order of the ITO. 10. Before the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was an existence of return as alleged by the assessee. As a matter of fact, notice u/s 148 was issued and it shall be presumed that such requirements under the said notice were the same as required u/s 139 (2) of the Act. Under the circumstances, there could be no presumption of filing of the returns as claimed. The ld. Dept. Rep. further contended that the department has proved that the assessee has, without reasonable cause failed to file the return within time. Thus it was contended that the finding of the ld. AAC may be sustained. 12. I have heard the rival submissions and perused the entire material on record. Sec. 148 (a) of the Act, 1961, provides that before making the assessment, reassessment or recomputation u/s 147, the ITO sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 142 (1) was issued, in that case it should be presumed that the return u/s 139 (1) has already been filed. On the facts of the present case, when the assessee was served with the proper notice u/s148 of the Act, 1961 no presumption can be made, when subsequently a notice u/s 142 (1) was issued that there was existing a return filed by the assessee. So the contention of the ld. counsel of the appellant on this point is not correct at all. The ld. AAC rightly held that in the present case no presumption can be made that a valid return was on the record when notice u/s 142 (1) was issued. 13. In the present case, a serious point was involved whether the assessee has filed the return within time or not. A notice u/s 148 was served on 13th Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on a particular date. The assessee was not able to disclose to the ITO or AAC the date or probable date as to when such return was filed. This circumstance itself suggests that really such return was not filed within time. The assessee or his authorised representative must be in the know of the date or at least probable date when such return was filed. Before the ld. AAC and also before the Tribunal, the assessee has tried to make out a case that the case file was transferred from one ward to another ward and as such there was probability that the return filed by the assessee might have been misplaced. This contention is not supported by any evidence whatsoever. Such allegations are quite vague and as such it would be very difficult to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee does not even know the date or probable date as to when the alleged return was filed. 15. Looking to the aforesaid facts, entire circumstances and preponderance of probabilities, it is proved by the department that the assessee never filed a return within time in pursuance of notice u/s 148 of the IT Act, 1961. The return by the assessee on 25th Oct., 1978 is not a duplicate return. But it was the original return. The assessee gave no other explanation for explaining the delay in filing the return. From the facts stated above, it is proved that the assessee has without any reasonable cause failed to file the return with time. Not only this, the conduct of the assessee has been contumacious. The assessee has taken the stand which was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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