9911796707
TMI Blog1982 (7) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. According to him, no return was filed on 24th Aug., 1972 and he levied the penalty of Rs. 61,900 under s. 271(1)(a). Being aggrieved, the assessee went in appeal before the CIT (A). According to the CIT (A), the assessee has not pressed the ground that the return was filed on 24th Aug., 1972 and in view of that he has confirmed the penalty imposed by the ITO. Being aggrieved, the assessee came in appeal before us. 2. The submission of the ld. counsel of the assessee Shri J.P.Shah was that the return which was due under s. 139(1) on 31st July, 1972 was filed by the assessee on 24th Aug., 1972 and the return which was filed on 2nd Sept., 1974 was the duplicate one. There is no case for penalty. According to him, the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the assessee is enough to prove that the assessee has filed the original return on 24th Aug., 1972. If the Department has lost the return somewhere or that by mistake issued a defective receipt the assessee alone is not responsible for the said mistake but the Department is equally responsible for issuing wrong receipt to the assessee. In view of these facts, there is no case for penalty and penalty levied should be cancelled. On the other hand, the submission of ld. Deptl. Rep. Shri Kathuria was that the assessee has not filed the original return on 24th Aug., 1972. From the scrutiny of the acknowledgement receipt in the inward register as well as the entry number given on the return it was found that the assessee's name was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt it should appear that the clerk has received the return. In this case, the assessee has received the printed receipt which the Department issues in normal course as receipt of returns whether the printed receipt was original or duplicate, we cannot expect a common assessee to be so expert to have asked about the genuineness of a particular receipt especially in this case where the assessee is not having sufficient knowledge to differentiate the original receipt from the duplicate one. Therefore, once the assessee receives the receipt and that too in a printed form, in our view, he cannot be penalised for the mischief or otherwise of the inward clerk. Now the question that remains is whether the assessee has not pressed the issue befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse to the notice of the Department. The assessee claimed that the has filed the return on 24th Aug., 1972. From the version of the assessee there appears to be some truth because thereafter no extension was asked for by the assessee. If the assessee had some difficulty he could have asked for further extension and under law he is entitled for extension of time. Further, the assessee is not a habitual defaulter. This is the first time that when this case is made out against the assessee. On the above facts, the conduct of the assessee appears to be normal and it cannot be said on these facts that the assessee has guilty mind or mens rea and wilful disregard of the statutory obligations. The assessee cannot be penalised only on the ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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