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TMI Blog1988 (2) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... e said assessment order and subsequently assessment was framed on16th Sept., 1978under s. 143(3)/144B of the Act on total income of Rs. 4,07,750. In that order also it was mentioned that penalty proceedings under s. 271(1)(a) of the Act have been initiated. It was also mentioned that interest under s. 139(8) of the Act be also charged. 3. Return of income in this case was due on or before30th Sept., 1971. No extension petition was filed by the assessee Notice under s. 148 of the Act was also issued on 18th Jan., 1974 requiring the assessee to file the return of income. The return was, however, filed only on15th March, 1974declaring income of Rs. 49,475. There was thus a delay of 29 months in filing of the return. It may not be out of place to mention here itself that after the appeal effect the taxable income in this case is seen to have been determined at Rs. 1,25,490 and tax thereon worked out to Rs. 79,631. 4. Subsequently the learned ITO issued show cause notice on 23rd Dec., 1983, requiring the assesses to show cause as to why penalty under s. 271(1)(a) of the Act be not levied for late filing of the return by 29 months. Assessee filed reply dt.9th Jan., 1984and raised the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of the return of income. It was also argued that penalty could not be imposed merely on the basis that "assessee tax" was higher than the tax due on self assessment, on the basis of return of income filed by the assessee It was contended that no penalty could be levied merely on the basis that assessee tax was much higher than the tax due on self assessment and that the self assessment was also in the nature of an assessment and that if no tax was due on the basis of self assessment, penalty could not be levied under s. 271(1)(a) of the Act for late filing of the income-tax return. The learned CIT(A), after considering the submissions, dismissed the assessee appeal, with the following observation: "The meaning of the word 'assessee tax' has been clarified in the explanation to s. 271(1)(a). There is no basis to bring in the concept of self-assessment, keeping in view the meaning of words 'assessee tax' as used in s. 271(1)(a). Penalty has to be levied under s. 271(1)(a) in addition to the amount of tax, if any, payable by the assessee. The tax payable obviously refers to the tax determined at the time of regular assessment. Penalty is, therefore, necessarily to be levied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned authorised representative was made of the ratio in the case reported in Shakuntla Mehra vs. CWT (l976) 102 ITR 301 (Dad) at page 307, which reference was found to be unrelated to the issue. Shri Agarwal also made mention of only pages 1 to 4 of the paper book being a copy of reply dt. l9th Jan. l984, filed before the learned ITO during the penalty proceedings. On the basis of the above contention it was Shri Agarwal's case that a wrong penalty order should have not been confirmed by the learned CIT(A). It was alternatively contended that in any case the penalty if found to be exigible. the Same be computed on the finally confirmed income after the annual effect. 8. On behalf of the Revenue the learned departmental representative Shri O.S. Bajpai supported the findings of' the lower authorities and contended further that the default in the present case was patent and that no reason for late filing of the return had been furnished. According to the learned departmental representative even notice under s. 148 was not complied with as such compliance could be within 35 days of the receipt. It was also pointed out by Shri Bajpai that there was no basis for the so called beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the year under consideration the assessee showed income of Rs. 49,473. There is no plausible reason inferable from the record as to how the income for the year under consideration was to be so low. There appears to be no basis or reason for showing income at that figure for this year. The self assessee tax on such income showing neither here nor there and the so called refund of Rs. 1,433 is also of no consequence as the refund is to be determined with reference to the finally assessee tax under the IT Act. Thus the assessee is not in a position to establish that there were circumstances where he could have a bona fide belief that refund was due and thus return need not be filed. It was for the assessee to establish such belief with reference to evidence which the assessee failed. Thus we start with the fact that there was no basis for any assumption on the part of the assessee that he had a reasonable belief for not filing the return in time. In this case the return was due on30th Sept., 1971as the accounting period was the year ending31st March, 1971. Notice under s. 148 was issued on18th Jan., 1974which should have been complied with within 35 days of its receipt. The return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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