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2016 (10) TMI 502 - MADRAS HIGH COURT

2016 (10) TMI 502 - MADRAS HIGH COURT - TMI - Penalty u/s 271F - non-filing of return immediately in response to notice under Section 153A - Held that:- The fact that the petitioner has not filed the return of income was well within the knowledge of the first respondent, even at the time, when notice under Section 153A of the Act was issued. It is not as if, immediately thereafter, proceedings under Section 271F were initiated, but in the interregnum, the petitioner's representation dated 19.05. .....

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etitioner could not file return of income for reasons given in the representation dated 19.05.2015, was found to be acceptable by the first respondent, and there is no finding that the representation is false, while entertaining the request for furnishing the photostat copies of the seized/impounded documents. Therefore, if for such purpose, the cause pleaded by the petitioner was found to be reasonable and consequently their plea that they were unable to file return of income due to certain fac .....

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the explanation merits acceptance. - With regard to the other allegations made by the petitioner as against the officer in her personal capacity, does not merit acceptance, as it appears to be vague allegation, in any event those allegations are not germane for deciding the legal issue in the instant case. Therefore, all such allegations stand eschewed. - The other issue pointed out by the learned Senior counsel for the petitioner is that the counter affidavit has not been sworn to by t .....

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- Writ Petition is allowed and the impugned orders levying penalty under Section 271F, for all the assessment years, are set aside - Decided in favour of assessee. - W.P.No.23794 of 2016 & W.M.P.No.20394 of 2016 - Dated:- 4-10-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr. A. E. Chelliah Senior counsel for Mr. K. Ramanujam For the Respondents : Mr. T. Pramod Kumar Chopda ORDER Heard Mr. A.E.Chelliah learned Senior counsel for Mr.K.Ramanujam, learned counsel for the petitioner and Mr.T. .....

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etition. The petitioner and her husband Mr.D.Ramagopal had approached this Court on an earlier occasion by filing W.P.Nos.11225 & 11226 of 2016, wherein they sought for a direction upon the Commissioner of Income Tax to withdraw the income tax assessment proceedings of the petitioners from the first respondent (Ms.Kalpalatha Rajan, I.R.S.,) and entrust the job to some other officer of the same cadre. The Writ Petitions were elaborately heard and were dismissed by a common order dated 23.06.2 .....

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ars. When the earlier Writ Petitions were pending before this Court, the petitioner made a representation to the respondent stating that she has filed the return of income and assessment orders have been passed and, hence the penalty proceedings initiated may be dropped. Though the representation dated 23.05.2016 was given to the Assessing Officer, it appears that no action was immediately taken and the impugned orders were passed after the earlier Writ Petitions were dismissed by order dated 23 .....

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erved on the petitioner on 18.12.2015, insisting upon the petitioner to file return of income on 22.12.2015, which could not be done on account of the fact that all records were taken away during the search and therefore, there is no wilfulness on the part of the petitioner in not filing the returns and without considering the fact that the petitioner is a lady, the first respondent mechanically passed the order. It is further submitted that in terms of Section 132(8) of the Act, the documents c .....

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es to documents seized/impounded from the petitioner/husband was facilitated and, all the documents and copies and books were taken on 02.06.2015. Further, it is submitted that the Assessing Officer has not passed any penalty order before completing the assessment. The learned counsel referred to the representation given to the second respondent dated 26.02.2014, the letter sent by the first respondent to her husband dated 30.09.2015 and submitted that the impugned order levying penalty is wholl .....

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stating as to how the decisions relied on by the first respondent in the counter affidavit are not applicable to the facts of the present case. 7. Mr.T.Pramod Kumar Chopda, learned counsel appearing for the Revenue submitted that the petitioner did not file the returns and therefore, penalty proceedings under Section 271F was initiated and it is only thereafter the petitioner filed her return of income admitting taxable income for the above referred assessment years. It is further submitted tha .....

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riod for completing the same expires on 30.06.2016 and accordingly, the impugned order was passed on 27.06.2016 and this has got nothing to do with the dismissal of the Writ Petition. Further, it is submitted that the Writ Petition is not maintainable, as there is an alternate remedy available to the petitioner and in support of such contention reliance was placed on the decision in the case of Nivaram Pharma Private Ltd., vs. CEGAT & Anr., reported in 2005-2-MLJ-246 and Collector of Central .....

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ot filed counter affidavit, it is fairly admitted that in the first page of the counter affidavit, it is stated that it is the counter of the first respondent, but the jurisdictional Assessing Officer of the petitioner in the place of the first respondent has filed the counter affidavit and description in the first paragraph is a bonafide mistake. 8. In reply, the learned Senior counsel referred to the re-joinder affidavit more particularly paragraphs 4 & 5, with regard to the averments of m .....

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e bar and even in the decisions relied on by the Revenue, the Hon'ble Supreme Court has held, when there are good grounds, this Court can interfere under Article 226 of the Constitution. The belated filing of the return was on account of genuine reasons, as the copies of the records seized in 2013, were given to the petitioner/husband only on 02.06.2015, as accepted by the first respondent in the intimation dated 30.09.2016. 9. Heard the learned counsels appearing for the parties and perused .....

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nalty not to be imposed in certain cases, it states that notwithstanding anything contained in the provisions of clause (b) of sub-section (1) of Section 271, Section 271A, Section 271AA, Section 271B, Section 271BA, Section 271BB, Section 271C, Section 271CA, Section 271D, Section 271E, Section 271F, etc., no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provision, if he proves that there was a reasonable cause for that fai .....

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ursuant to seizure of the fixed deposits during search, the explanation of the assessee was that he was under bona fide belief that interest was not taxable. The findings of all the authorities was that the explanation was reasonable and no finding that the explanation was false and it was held that there was no question of levy of penalty. 12. In Jyoti Laxman Konkar vs. CIT reported in 2007-292-ITR-163 (Bom), there were discrepancies in stock noticed during survey and the assessee meanwhile fil .....

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asonable cause on the part of the assessee in not filing the return on time. 14. In the background of the above legal position, if we examine the case on hand, one fact which strikes the eye is that the petitioner/husband had been approaching the department for furnishing of copies of the documents, which were seized during the search, conducted on 27.11.2013. The representation in this regard was submitted by the petitioner's husband on 26.02.2014. Subsequently, a request was made by him un .....

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uld not file returns and requested for taking photostat copies of the documents seized/impounded in their case. The first respondent admitted that this was facilitated and the petitioner/husband has taken copies of all required books and documents seized/impounded in the petitioner's case on 02.06.2015. 16. Thus, the fact that the petitioner has not filed the return of income was well within the knowledge of the first respondent, even at the time, when notice under Section 153A of the Act wa .....

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seized/impounded during the search. This request made by the petitioner's/husband's letter dated 19.05.2015, was complied with on 02.06.2015. Thus, the fact that the petitioner could not file return of income for reasons given in the representation dated 19.05.2015, was found to be acceptable by the first respondent, and there is no finding that the representation is false, while entertaining the request for furnishing the photostat copies of the seized/impounded documents. Therefore, i .....

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