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2024 (12) TMI 983 - AT - Income TaxLevy of penalty u/s 271(1)(c) - assessee has received substantial contract receipts - HELD THAT - It is evident from the record that the assessee neither filed its return of income u/s 139 nor filed its return of income in response to notice issued under section 148. It is also evident from the record that the notice under section 148 of the Act and other statutory notices were issued beyond the time period specified u/s 153(1). AO on the basis of the information received from the ITD systems and NMS portal was satisfied that the assessee has received substantial contract receipts amounting to Rs. 2.5 crore during the year under consideration. Therefore on a plain application of the provisions of Explanation 3 to section 271(1)(c) of the Act the present case clearly falls in the category of concealment of particulars of income for the purpose of section 271(1)(c) of the Act. Thus we find merits in the findings of the learned CIT(A) in rejecting the contention of the assessee that no penalty can be levied in the present case as the addition has been made purely on an estimated basis. As evident from the record the assessee has been in complete defiance of various statutory requirements and also did not furnish the details as called for during the assessment proceedings. Thus when necessary data at least the income tax return has not been filed by the assessee despite opportunity even pursuant to notice issued under section 148 of the Act the assessee cannot now take the plea that since the addition has been made by applying the net profit rate no penalty can be levied in its case. Therefore we are of the considered view that the decisions relied upon by the learned AR in support of the aforesaid plea are completely distinguishable on facts and thus not applicable to the present case. Insofar as the contention of the learned AR that the assessee could not file the return of income due to failure on the part of its auditor it is pertinent to note that under the provisions of section 139 of the Act it is the responsibility of the assessee to file its return of income within the due date and same cannot be compared to the filing of audit report under section 44AB of the Act which specifically requires the accounts to be audited by an accountant and furnishing of such audit report in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed. Thus we are of the considered view that even if due to the failure on the part of the auditor the assessee failed to file its audit report as required under section 44AB of the Act the same does not absolve the assessee from its responsibility to file the return of income under section 139 of the Act. At this stage it is also pertinent to reiterate that the assessee also failed to file its return of income in pursuance of notice dated 30/03/2018 issued under section 148 of the Act. Thus when the assessee has failed to comply with its statutory requirements under section 139 of the Act and also has completely ignored the notice issued under section 148 of the Act the assessee now cannot shift its responsibility to its auditor. Accordingly we find no merits in the aforesaid plea made on behalf of the assessee and the reliance placed on the decision of the coordinate bench rendered in assessee s own case is completely misplaced. AO correctly levied a penalty under section 271(1)(c) of the Act in the present case and the same has been rightly upheld by the learned CIT(A). Decided against assessee.
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