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2014 (8) TMI 1000 - AT - Income TaxPenalty u/s 271(1)(c) - return has been filed after the issue of notice u/s 148 - whether the return filed by the assessee is a return u/s 139(4) or in response to notice u/s 148 ? - Held that:- There is no dispute to the fact that the assessment in the case of M/s. Bedi Automobiles in which the assessee is a partner was made much before the issuance of notice u/s 148 to the assessee. Therefore, it cannot be said that the assessee partner Smt. Mohinder Kaur was not aware of such fact, as recorded in the reasons recorded by the A.O. The assessee proceeded to deposit tax on 03.02.2010 amounting to ₹ 2.25 lacs which is a part payment against tax payable after payment of advance tax of ₹ 12,89,333/-, as claimed by the assessee in the submission dated 04.03.2011. The return u/s 139(4) should have been filed up to 31.03.2009 for the assessment year 2007-08, which in fact, has been filed on 18.02.2010. Therefore, the return of income filed by the assessee on 18.02.2010 is a non est return and therefore, the claim of the assessee in para 4 to Explanation/Reply dated 04.03.2011 reproduced hereinabove is against the facts of the case and is not a return u/s 139(4) of the Act. On this count, the return filed by the assessee is a non est return. The assessee in the same explanation had claimed the return to have been filed in response to notice u/s 148 of the Act. The fact that notice in the present case has been issued on 15.02.2010 and served on the assessee on 18.02.2010 and the assessee filed the return on 18.02.2010. If the return is treated to have been filed after service of notice u/s 148 of the Act, then the fact that the return has been filed when the income tax department detected the concealment of income. No cogent explanation has been submitted by the assessee to substantiate the claim of not filing the return voluntarily. The assessee was short of finances and therefore, did not deposit the tax with the Income tax Department, cannot be a sufficient explanation. The issuance of notice u/s 148 and in the facts and circumstances of the present case, as mentioned hereinabove, the assessee was aware of the fact in the assessment of the firm M/s. Bedi Automobiles by virtue of issuance of notice u/s 148 and in the facts and circumstances shall be deemed to have concealed the particulars of income or has furnished inaccurate particulars of thereof and the assessee is liable to penalty u/s 271(1)(c) of the Act. The Ld. CIT(A) has observed that it cannot be said in certainty that as to whether the return filed by the assessee is a voluntarily return or it has been filed in response to notice u/s 148 of the Act and the benefit of doubt should go in favour of the assessee in all probability. The Ld. CIT(A) cannot blow hot and cold in the same breath. This finding of the ld. CIT(A) cannot hold good for the reasons that the return filed by the assessee is a non est return, as has been held hereinabove by us. The return cannot be said to be voluntary return as per our findings hereinabove. - Decided against assessee
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