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TMI Blog2005 (9) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... er requisition made under section 142(1) fixing the date for hearing on 20-3-2002. The Ld. Authorised Representative of the assessee appeared and filed a written objection challenging the jurisdiction of the Assessing Officer over the assessee and also confirmed that no return for the assessment year 1995-96 was filed. Since the assessment was due to be barred by limitation, the assessment under section 144/147 was completed vide order dated 27-3-2002 on a total income of Rs. 27,67,850 as under:- 1. Income from salary after Rs. 1,78,403 allowing exemption and deductions 2. Income from other sources: (a) Receipt credited in Rs. 25,40,464 bank account treating as royalty income (b) Estimated undisclosed Rs. 18,000 interest income (c) Estimated undisclosed Rs. 15,000 income on past investments (d) Bank interest Rs. 25,982 Rs. 25,99,446 -------------- ------------- Rs. 27,77,849 3. Less: Deduction under Rs. 10,000 section 80L Deduction 80RR is not Nil Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are same. Therefore, there is no question of concealment penalty under section 271(1)(c) which was wrongly confirmed by Ld. CIT(A)." 5. The Ld. Counsel for the assessee while reiterating the same submissions as submitted before the Ld. CIT(A) further submits vide his written note as under:- "The assessee retired as Chief Justice of Mumbai High Court on 31-3-1995. After retirement he went to Bangalore as a Honourary Professor in National Law College, Bangalore and being a scholar was completely involved in teaching law to his students till December, 2000. The matter of filing Income-tax Return did not come to his mind, because for last 20 years since 1976 as a Judge, his Form No. 16, Income-tax Returns etc., used to be taken care by his office staff, Accounts Officers etc. Moreover, he thought, in Mumbai, tax was deducted from his salary and for his foreign earning he had already paid advance tax. However, in January 2001 he had packed up from Bangalore and landed in Kolkata with various ailments.Unfortunately he was so unwell and practically bed ridden, could not file his return of income. Doctor's Certificate is already filed." 6. He further submits that in the course of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, therefore, it is a fit case for levy of penalty and, therefore, there is no error in the order of the Ld. CIT(A) in sustaining the penalty imposed by the Assessing Officer under section 271(1)(c) of the Income-tax Act. The reliance was placed on the decision in CIT v. Sudharshan Silk Sarees [2002] 253 ITR 145 (Kar.), P.C. Joseph Bros. v. CIT [2000] 243 ITR 818 (Ker.) and CIT v. Onkar Saran Sons [1992] 195 ITR 1 (SC). 8. We have carefully considered the rival submission of the parties and perused the material available on record. We find that there is no dispute that no return for the impugned assessment year 1995-96 was filed by the assessee. We further find that the plea of the Ld. Counsel for the assessee that the matter of filing income-tax return did not come to the mind of the assessee because for last 20 years since 1976 as a Judge, his Form No. 16, Income-tax returns etc., used to be taken care of by his office staff, Accounts Officer etc., and the tax was deducted from his salary and for his foreign earnings he had already paid advance tax and thereafter he was confined to bed, therefore, could not file his return for which doctor's certificate has already been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of the same being spelt out by the order of the assessing authority vide Kshetra Mohan Roy v. ITO [1983] 139 ITR 441 (Cal.), CIT v. Ram Commercial Enterprises Ltd. [2000] 246 ITR 568 (Delhi), Diwan Enterprises v. CIT [2000] 246 ITR 571 (Delhi) and CIT v. B.R. Sharma [2005] 275 ITR 303 (Delhi). 10. In CIT v. Onkar Saran Sons [1992] 195 ITR 1, relied on by the Ld. Departmental Representative, it has been held by the Hon'ble Supreme Court at page 2 as under:- "Held, affirming the decision of the High Court, that, even in a case where a return filed in response to a notice under section 148 involved an element of concealment, the law applicable would be the law as it stood at the time when the original return was filed for the assessment year in question and not the law as it stood on the date on which the return was filed in response to the notice under section 148." 11. In P.C. Joseph Bros. v. CIT [2000] 243 ITR 818, relied on by the Ld. Departmental Representative, it has been held by the Hon'ble Kerala High Court at page 822 as under:- "...Where the surrender of income made in the revised return was not voluntary, but was as a result of detection by the assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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