Penalty for late return filing upheld where appellate penalty jurisdiction existed and unrecognised partition did not defeat liability.

Penalty for late filing of a return under the Indian Income-tax Act, 1922 could be imposed by the Appellate Assistant Commissioner under section 28, and section 31 did not exclude that jurisdiction. An alleged partition of a Hindu undivided family did not defeat penalty where it had not been recognised by an order under section 25A; in the absence of statutory recognition, the family continued to be treated as a Hindu undivided family. Reasonable cause for delay and waiver of penalty were not established on the material available, so the penalty defence failed.

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Issues: (i) Whether the Appellate Assistant Commissioner had jurisdiction to levy penalty for late filing of the return in an appeal arising from assessment under the Indian Income-tax Act, 1922; (ii) Whether the alleged partition of the Hindu undivided family prevented the levy of penalty; (iii) Whether reasonable cause for delay or waiver of penalty was established.

Issue (i): Whether the Appellate Assistant Commissioner had jurisdiction to levy penalty for late filing of the return in an appeal arising from assessment under the Indian Income-tax Act, 1922.

Analysis: The relevant power was held to lie in section 28 of the Indian Income-tax Act, 1922, which authorises the Income-tax Officer, the Appellate Assistant Commissioner, or the Appellate Tribunal, in the course of proceedings under the Act, to impose penalty where a return is not furnished within time and without reasonable cause. Section 31, which deals with appellate powers over assessment, was held not to exclude this penalty jurisdiction.

Conclusion: The Appellate Assistant Commissioner was competent to levy penalty, and this issue was answered in favour of the Revenue.

Issue (ii): Whether the alleged partition of the Hindu undivided family prevented the levy of penalty.

Analysis: The alleged partition was not shown to have been recognised by any order under section 25A of the Indian Income-tax Act, 1922. In the absence of the statutory procedure and an order recording partition, the family continued to be treated as a Hindu undivided family for the purposes of the Act by virtue of section 25A(3).

Conclusion: The penalty could not be avoided on the ground of partition, and this issue was decided against the assessee.

Issue (iii): Whether reasonable cause for delay or waiver of penalty was established.

Analysis: The plea of reasonable cause was raised belatedly and required factual investigation, for which no supporting material was on record. The contention of waiver also failed because there was nothing to show that the Income-tax Officer had applied his mind to the default and deliberately refrained from levying penalty.

Conclusion: Neither reasonable cause nor waiver was established, and this issue was decided against the assessee.

Final Conclusion: The reference was answered substantially in favour of the Revenue by upholding the penalty jurisdiction and rejecting the assessee's defences.

Ratio Decidendi: In proceedings under the Indian Income-tax Act, 1922, penalty for failure to furnish a return in time may be imposed by the Appellate Assistant Commissioner under section 28 if the default is established without reasonable cause, and an unrecorded partition of a Hindu undivided family does not prevent such penalty.

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