TMI Blog2002 (10) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... ee was required to file a statement in Form No.52A, containing the particulars of all payments of over five thousand rupees in the aggregate made by it or due from it as the assessee was engaged in the production of films. The said statement was to be filed within 30 days of completion of the production. The first film was released on 28-9-1989 and the second one released on 22-3-1991. Hence, the statement was due on or before 28-10-1989 and 21-4-1991 respectively. However, the assessee did not comply with the above requirement. The Assessing Officer held that the failure on the part of the assessee to file the said statements within the prescribed time attracts penalty under clause (c) of sub-section (2) of section 272A of the Act. Accordingly, notice under section 274(1) r.w.s. 272 A (2)(c) of the Act, on, 14-7-1999 for both the assessment years in question, calling the assessee to appear before the Assessing Officer on 27-7-1999 so as to explain why penalty could not be imposed. The assessee did not reply. Second notice was issued on 27-10-1999 calling the assessee to state its reply on or before 15-11-1999. The assessee did not respond again. According to the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Dy. CIT processed the return without pointing out any discrepancy or irregularity, it was possible that Form No. 52A might have got misplaced/lost after completing the assessment proceedings. Similar is the case for the assessment year 1991-92. The first appellate already dismissed the assessee's appeal vide para.4 of his order observing as under: "On consideration of the facts of the case, it is noticed that the Assessing Officer has imposed the penalty as Form No. 52A was not on record, either for the assessment year 1990-91 or for the assessment year 1991-92. During the course of appellate proceedings, the authorised representative of the appellant was required to give evidence in regard to the claim that Form 52A was actually filed. However, he expressed his inability to give any direct evidence of having filed Form No. 52A with the income-tax authorities at Aluva or Trichur. Since the appellant has been insisting on having filed Form No. 52A with the income-tax authorities, no explanation was offered at the time of hearing in regard to non filing of Form No. 52A at all. Under the circumstances, the Assessing Officer was justified in levying penalty under section 272A(2)(c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that while processing the returns under section 143(1)(a) the Assessing Officer has not pointed out any defects in the returns, which is also supports the contention of the assessee. Thus, the learned counsel for the assessee contended that there is no reason for the department to blame the assessee that the assessee has not filed Form No. 52A as required under the statute. 6. The learned counsel for the assessee submitted that legally also the order of the Assessing Officer has no sanctity. Under section 285B of the Act, the assessee was obliged to file Form No. 52A. According to the revenue the assessee did not comply with it. For the failure of the assessee to file the prescribed form within the prescribed time attracts penalty under clause (c) of sub section (2) of section 272A. Accordingly notice under section 274(1) was issued on 14-7-1999, after the lapse of almost 10 years. The assessee's counsel submitted that under section 275(1)(c), penalty proceedings are initiated beyond the time and therefore illegal. The assessee's counsel submitted that since the assessment was completed on 9-2-1993 the penalty should have been initiated on or before 9-2-1993 and it should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, let us proceed with the presumption that the assessee has not filed the requisite form. An assessee in failure to furnish the details in the prescribed form is to be penalised under section 272A(2)(c) of the Act as he has not complied with section 285B. 10. But the statute prescribes a limitation time for imposing penalty under section 275 of the Act. For an easy reference, this section is reproduced hereunder: "Bar of limitation for imposing penalties:- Section 275(1). No order imposing a penalty this Chapter shall be passed- (a) and (b)** (c) in any other case, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed, or six months from the end of the month in which action for imposition of penalty is initiated, whichever period expires later." Section clearly states that no penalty shall be imposed in any other case i.e., other than the one mentioned in clauses (a) and (b), after the expiry of the financial year in which the proceedings in the course of which action for imposition of penalty has been initiated, are completed, or six months from the end of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time limit for imposition of penalties. Clause (c) starts with the wording 'in any other case...' This means section 275(1)(c) is applicable to all other sections, i.e., other than the ones mentioned in section 275(1) and (b). The Hon'ble Delhi High Court held, as noted above, that the penalty proceedings should be started during the course of assessment proceedings. In that case, the Hon'ble High Court not only held that a mere writing in the assessment order that penalty proceedings will be separately initiated alone is not sufficient but before the completion of the assessment at-least the first initial step of issuance of notice should have taken place or instruction to the concerned officer to issue notice of penalty should separately given. 13. In the instant case of the assessee penalty proceedings starts after a gap of almost 6 years and 10 months. Natural justice demands that there should be an end to the proceeding within a reasonable time. The Assessing Officer who passed the assessment order either by mistake or for valid reason did not initiate the proceedings and impose the penalty. However, after a long gap of about 7 years, one fine morning the machinery put in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 143(1)(a) proceedings were completed on 21-3-1991 for the assessment year 1990-91 and for the assessment year 1991-92 was completed on 23-9-1991. There was a letter from the Office of the Dy. Director of Income-tax (Inv.), Unit-IV, Kannamai Building, Anna Salai, Chennai, dated 10-7-1991. In reply to this, the assessee filed a copy of Form No.52 A on 4-9-1991 by R.P.A.D. and the acknowledgment is evidenced in the paper book, which we have mentioned herein above. This indicates that the assessee's claim that the assessee had filed the requisite Form No. 52A gets support. It is the case of the assessee that the Assessing Officer was changed and there was a shifting of office from Aluva to Trichur and possibly, during this shifting something might have happened. This possibility also cannot be ruled out. We hold so only because the assessee has forwarded a copy of the Form No. 52A said to be filed before the Assessing Officer in Kerala who was having jurisdiction over the assessee. 18. Page Nos. 15 and 16 of the paper book filed by the assessee are the notices dated 31-8-1992 and 25-11-1992 pertaining to the assessment year 1991-92, calling for details. Page No. 17 is the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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