TMI Blog1982 (7) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of the I.T. Act, 1961 (hereinafter referred to as the " Act "). In response to the show-cause notice, the assessee appeared before the ITO and resisted the Proposed action on various grounds. The contention which the assessee raised before the ITO, as set out in the order of the Income-tax Appellate Tribunal, were as follows : " (1) An application was made to the Income-tax Officer on 26-6-1968, requesting for supply of the form of return of income and as the form was not received, and application in Form No. 6 was made on 28-6-1968, requesting extension of time till 30-9-1968. Another application in Form No. 6 was made on 10-10-1968, requesting extension of time up to 31-10-1968, and again, an application in Form No. 6 was made on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the ITO had wrongly calculated the penalty imposed upon the assessee under s. 27l(1)(a) of the Act. In the result, he enhanced the penalty to Rs. 27,830, after hearing the assessee on the question of enhancement of penalty. Being aggrieved by the order of the AAC, the assessee carried the matter in appeal before the Income-tax Appellate Tribunal (hereinafter referred to as the " Tribunal "). The Tribunal was of the view that the assessee had complied with the requirements of s. 139(1), when it made an application in Form No. 6 for extension of time for filing the return, and, therefore, no penalty could be levied under s. 271(1)(a). The Tribunal further held that it was incumbent upon the ITO to render his decision on the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under it is incumbent upon the Income-tax Officer to entertain the application for extension of time not made in the prescribed manner and whether non-reply of such invalid applications exonerate the assessee from penal consequences under section 271(1)(a) of the Income-tax Act, 1961 ? (3) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in holding that when the Income-tax Officer did not discharge his statutory duty by exercising his discretion one way or the other and whereby he deprived the assessee of his right, it was not open to the Revenue authority to penalise the assessee by holding that the assessee was in default of not filing the return of income in time ? " The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extension of time. It is, however, contended on behalf of the Revenue that the applications which were made on behalf of the assessee were not made in the prescribed manner inasmuch as they were not signed by the person authorised to sign on behalf of the assessee. The ITO, therefore, could have ignored these applications. In other words, according to the Revenue, it was not incumbent upon the ITO to render his decision on the applications made on behalf of the assessee. As pointed out above, proviso to sub-s. (1) of s. 139 empowers the ITO to extend the date for furnishing the return. It is obvious that there is a corresponding duty on the ITO to render his decision on the application made to him and communicate it to the assessee concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty for failure to furnish the return within the time specified by law could have been imposed only if it was shown that the assessee had either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of his obligation to file the return in time. Failure without reasonable cause to furnish the return in time is an ingredient of the offence and the legal burden is on the Department to establish by leading some evidence that, prima facie, the assessee had without reasonable cause failed to furnish the return within the time specified. If we examine the facts in the instant case in the background of this decision, we find that the applications for extension of time made on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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