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2019 (12) TMI 984 - AT - Income TaxPenalty u/s 271 - non furnishing of the returns as required under section 139(1) - CIT(A) passed the order under section 154 confirming the penalty levied by the AO - HELD 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 deliberations it is not permitted to make the rectification section 154 of the Act. It is settled issue that under section 154 of the Act, the authorities are permitted to rectify the mistake which is apparent from the record and in the instant case, there was no mistake which is apparent from the record and the issue required to be discussed deliberately and consider various case laws. Therefore, we hold that the order passed by Ld. CIT(A) u/s 154 is bad in law and unsustainable. Accordingly, we the cancel the order passed under section 154 of the Act and restore the original order dated 19-4-2018 and allow appeal of the assessee. Penalty u/s 271F - 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.
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