TMI Blog1995 (8) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... Dutta died intestate on November 9, 1972, without filing the income-tax returns (hereinafter to be referred to as "the returns"). After his death, his widow, Smt. Shibani Dutta, filed the income-tax returns in respect of the income from the properties left by the deceased, Bhutnath Dutta, on June 29, 1974, in respect of the assessment years 1972-73 and 1973-74. Under section 139(1) of the Act, the returns in respect of the aforesaid assessment years ought to have been filed on or before June 30, 1972, and June 30, 1973, respectively. No application in Form No. 6 for extension of time was also filed. No notice under section 139(2) of the Act was also issued by the Income-tax Officer. The returns in respect of both the assessment years were filed voluntarily. The Income-tax Officer held that there was a delay of complete 23 months and complete 10 months in filing the returns for the assessment years 1972-73 and 1973-74, respectively. Smt, Shibani Dutta, the assessee (widow of the deceased Bhutnath Dutta) submitted before the Income-tax Officer that Bhutnath Dutta died on November 9, 1972, and after his death the business was managed by the employees and she was not at all conversant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturns from December 1, 1973, and in respect of both the assessment years 1972-73 and 1973-74, the assessee, Smt. Shibani Dutta, committed default in not filing the returns by December 1, 1973, and penalty was leviable against her in respect of both the assessment years and dismissed the appeal. The assessee thereafter made an application under section 256(1) of the Act before the Appellate Tribunal for referring two questions of law, which according to the assessee arose out of the appellate order passed by the Appellate Tribunal, to this court for its opinion. The Appellate Tribunal by the order dated November 25, 1978, allowed the application to the extent of referring the aforesaid question of law to this court for its opinion as stated above. We have heard Mr. Moitra, learned counsel for the assessee, and Mr. Vidyarthi, for the Income-tax Department (opposite party herein). Learned counsel for the assessee submitted that some of the children of Bhutnath Dutta having become major, Shibani Dutta, the widow, was not the only legal representative and no notice of the proposed penalty having been issued and served on the other heirs and legal representatives of the late Bhutnat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decision of the Madras High Court in the case of CIT v. P. S. Mohideen Abdul Khader [1994] 210 ITR 735, the decision of the Delhi High Court in the case of CIT v. Shanta Electrical Industries [1986] 160 ITR 774 and the decision of the Gujarat High Court in the case of Addl. CIT v. I. M. Patel and Co. [1977] 107 ITR 214 [FB]. Learned counsel for the Income-tax Department, on the other hand, submitted that in paragraph 27 of the judgment, the Tribunal has given cogent reasons in detail for holding that there was no reasonable cause for the delay in filing the returns by the assessee after December 1, 1973, and the Appellate Tribunal is justified in upholding the penalty levied against the assessee alone as the legal representative of the late Bhutnath Dutta under section 271(1)(a) of the Act, and as such, the question referred should be answered in the affirmative and in favour of the Department. I have considered the submissions made on behalf of the assessee as well as on behalf of the Revenue and perused the materials on record. On the question as to whether the levy of penalty has been vitiated without serving notice to the other heirs and legal representatives of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I. M. Patel and Co. [1977] 107 ITR 214 [FB], the Gujarat High Court held as follows : " (1) Under section 271(1)(a) of the Income-tax Act, 1961, failure without reasonable cause to furnish the return in question is an ingredient of the offence ; (2) Section 271(1)(a) provides for penalty in cases where the assessee has either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of this obligation ; (3) The legal burden is on the Department to establish by leading some evidence that Prima facie, the assessee has without reasonable cause failed to furnish the return within the time specified in section 271(1)(a) read with the relevant other section referred to in that section. Once this initial burden, which may be slight, has been discharged by the Department, it is for the assessee to show as in a civil case on balance of probabilities that he had reasonable cause in failing to file the return within the time specified ; (4) Mere falsity of the explanation furnished by the assessee cannot help the Department in establishing its case against the assessee at the time of imposition of penalty. " In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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