TMI Blog1979 (11) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ce should have been filed on or before November 11, 1960. But it was actually filed only on December 21, 1962, i. e., after a delay of 25 months. For the assessment year 1961-62, the return in response to the notice under s. 22(2) was due to be filed on or before April 20, 1962. It was however, filed only on December 29, 1962, i. e., after a delay of 8 months. The assessments for both the years were completed by the ITO on March 30, 1963, under s. 143(3) of the I.T. Act, 1961. The ITO was also of opinion that the delay in the filing of the returns was not due to reasonable cause. He, therefore, issued notices to the assessee and after considering and rejecting the explanation given by the assessee for the delay in the filing of the retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also not been taken into account before levy of the penalties. Keeping all these facts in view, we consider that the ends of justice would be met by the imposition of penalties of Rs. 2,500 and Rs. 1,000, respectively, for the assessment years 1960-61 and 1961-62. The excess amount of penalties, if already collected, shall be refunded to the assessee. The Tribunal granted the above reduction because it was of the opinion, which has been expressed in para. 5 of the order, that in respect of defaults as committed by the applicant in this case the quantum should be determined with reference to the Act of 1922. At the request of the Commissioner, the following three questions have been referred to us for our decision: " 1. Whether, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, sought to support the assessee's case on a slightly different ground. He raised the contention that in the present case the notices having been issued under s. 22(2) before April 1, 1962, the assessments should have been completed by the ITO under s. 23(3) of the Indian I.T. Act, 1922. According to him, the assessments completed under s. 143(3) were invalid. The learned counsel contends that it is open to him to urge that the penalty orders are invalid because the assessments on the basis of which the penalties are sought to be levied are thus invalid. There are several formidable objections in the way of the counsel for the respondent. In the first place, this is a point which the learned counsel did not take before the Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under cls. (b) and (c) of s. 297(2) and cl. (b) certainly permitted the assessment to be made under the provisions of the new Act. Thus, even on merits, the contention that the assessment itself was invalid would not appear to be correct. But, as already stated, we are not deciding this question and we are merely indicating our prima facie opinion. The next contention of Mr. C. S. Aggarwal was that though a penalty was imposable under s. 271(1)(a) of the Act, the Tribunal was justified in reducing the quantum of the penalty because at "least a part of the period of default fell during the period prior to April 1, 1962. This contention of the learned counsel can have any validity, if at all, only in relation to the assessment year 1960-61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were applicable at different periods of time, and the court had to consider how far these provisions were to be reconciled and how these provisions had to be applied where the period of default extended over periods covered by the various provisions. But in the present case after the decision of the Supreme Court in Jain Brothers' case [1970] 77 ITR 107 (SC), there is no dispute that it is only s. 271 (1)(a) that has to apply, and not s. 28(1)(a). This being so, the question of applying differential rates for the periods of default prior to April 1, 1962, does not at all arise. Finally, Shri C. S. Aggarwal drew our attention to para. 6 of the Tribunal's order where the Tribunal has given as one of the reasons for reducing the penalty, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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