Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2016 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (1) TMI 712 - AT - Income TaxPenalty imposed u/s 158BFA(2) - delay of 10 days in filing the return - Held that:- Levy of penalty under s. 158BFA(2) is not automatic. Before levying penalty, the concerned officer is required to find out that even if there was any failure referred to in the concerned provision the same was without a reasonable cause. The initial burden is on the assessee to show that there existed reasonable cause which was the reason for the failure referred to in the concerned provision. Thereafter, the officer dealing with the matter has to consider whether the explanation offered by the assessee or the person, as the case may be, as regards the reason for failure, was on account of reasonable cause. In our opinion, the delay of 10 days in filing the return is well within the knowledge of the assessee and the assessee is aware of the consequences of late filing of return. Therefore, it is not a case of deliberate attempt to delay the filing of return and avoid payment of taxes. Hence, the AO, is not right in levying penalty on the assessed income including returned income by invoking first proviso to section 158BFA(2). In the present case, the undisclosed income finally assessed at ₹ 42,59,151/- as per the consequential order passed by AO, giving effect to ITAT order. The assessee admitted a undisclosed income of ₹ 35,00,000/- in the block return. Thus, there was difference of ₹ 7,59,151/- in the assessed income in excess of returned income. The CIT(A), after considering the factual position and also considering the third member decision of ITAT Cochin bench in the case of DCIT vs. Heera Constructions Co P. Ltd [2009 (8) TMI 120 - ITAT COCHIN ], confirmed the penalty on this portion of undisclosed income. CIT(A) rightly deleted the penalty levied u/s 158BFA(2) by the AO on undisclosed income declared by the assessee in the block return and confirmed the penalty on undisclosed income determined by the AO in excess of undisclosed income shown in the block return. Hence, we inclined to up held the order of CIT(A). - Decided against revenue
|