TMI Blog2019 (12) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... 71F - assessee could not file the return of income because of preoccupation of the employment - HELD THAT:- 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 [ 2004 (4) TMI 262 - ITAT CALCUTTA-B] 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. Considering the all the facts of the case that the assessee has filed the return of income within time allowed u/s. 139(4) of the Act, the return being refund return, the decision of Hon ble High Court of Bombay in the case of Trustees of Tulsidas Gopalji Charitable and Chaleswar Temple Trust vs. CIT [ 1993 (9) TMI 75 - BOMBAY HIGH COURT] we hold that there is no case for levy of penalty u/s. 271F of the Act. - Decided in favour of assessee. - ITA Nos.2604, 2605, 2606/Bang/2018 And ITA No.357/Bang/2019 - - - Dated:- 20-12-2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of Hon ble Bombay High Court in the case of Trustees of Tulsidas Gopalji Charitable and Chaleswar Temple Trust vs. CIT [1994] 207 ITR 368 (Bom), wherein it was held that the sub s. (1) (4) to section 139 of the Act have to be red 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 made within the time prescribed in sub section (1) sub section (2) to section 139 of the Act. Thus, submitted that there is no default and requested to drop the penalty proceedings under section 271F of the Act. Not being convinced with explanation of the assessee, the AO levied the penalty of ₹ 5,000/- each for the assessment years 2012-13 to 2015-16. 4. Against the order of the AO the assessee filed appeal before the Ld. CIT(A) and reiterated the submissions which were made before the AO. The Ld. CIT(A) considered the submissions of the assessee and allowed the appeal. While allowing appeal, the Ld.CIT(A) relied on the decision of Hon ble High Court of Bombay in the case of Trustees of Tulsidas Gopalji Charitable and Chaleswar Temple Trust vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirming the penalty levied by the AO. We also extract the relevant part of the order of the Ld. CIT(A), which reads as under: 3.1 I have carefully considered the submissions made by the appellant and also perused the case relied upon by his Authorised Representative. In respect to the provisions of Section 271 F, the Assessing Officer points out that the appellant has failed to give satisfactory explanation for delay in filing of return of Income and states that as per the provisions of Section 271 F, if a person who is required to furnish his return of income as required under sub section (1) of 139 or by proviso to that sub-section, fails to furnish such return before the end of the relevant assessment year is liable to pay penalty of ₹ 5000/-. But, I have held that on careful reading of Section 139 of the Act, we are of the clear opinion that subsection (1) and (4) of Section 139 have to be read together and on such a 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 as sub section (1) or (2) of Section 139 of the Act re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139(4) of the Act would not dilute non furnishing the return of income before the end of relevant assessment year as required u/s 139(1) of the act. The Ld.CIT(A) in the rectification order relied on the ratio laid down by the Hon ble supreme Court in the case of Prakash Nath Khanna vs. CIT [2004] 135 Taxman 327 (SC) . From the plain reading of the order u/s. 250 of the Act, dated 19.04.2018 and 16.08.2019, it is clear that the Ld. CIT(A) has taken two different views, placing reliance on the decision of Hon ble High Court of Bombay allowed the appeal of the assessee and re-visiting s. 271F of the Act and considering the decision of Hon ble Supreme Court in the case of Prakash Nath Khanna vs. CIT (supra) decided the appeal against the assessee. The two decisions apparently contradictory following the different judgements of Honourable Bombay High court and the Supreme Court which are not on the same facts. Therefore, it is clear from the above facts that there are two views are possible on the issue one is in favour of the assessee and the other one is against the assessee. When the two views are possible on the same issue and the issue which needs to be decided after debate and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee s case. The AR submitted that the assessee was engaged in the employment which did not permit him to spare time for filing return of income. However he submitted that he filed the return of income within the time limit allowed under section 139(4) of the Act,hence, requested to cancel the penalty and allow the appeal of the assessee. 10. On the other hand, the Ld. DR argued that the assessee is habituate defaulter and not filing returns of income within the time allowed u/s 139(1) of the act, therefore, argued that there is no case for taking a leniency in the case of assessee, hence, argued that it is a fit case for levy of penalty and submitted that there is no reason to interfere with the order of Ld. CIT(A) thus, requested to uphold the order of Ld. CIT(A) and dismiss the appeal of the assessee. 11. We have heard the rival submissions and perused the material placed on record. In the instant case, the assessee is a salaried employee and working with the TCS company. Though the assessee is very busy in his employment, it is obligation of the assessee to comply with the statutory requirements and to abide by the laws of the land. Being an edu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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