1992 (3) TMI 128

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....tion 274 calling upon the assessee to explain the delay in filing his return late. No reply was filed by the assessee despite reminders from the ITO. Under the circumstances, the ITO concluded that the assessee had no reasonable explanation to offer. He levied penalty of Rs. 14,692 and passed the penalty orders dated 21-1-1988. Similar penalty was also levied with regard to assessment year 1984-85. The assessee appealed against the similar penalties under section 271(1)(a) read with section 274 for assessment years 1983-84 and 1984-85 before the D.C. (Appeals), Visakhapatnam, by a common order dated 13-9-1988, the D.C. (Appeals) confirmed the penalties. Against the confirmed penalties for assessment year 1983-84, the present appeal is brought by the assessee. The levy of penalty was challenged on the following grounds before us : 1. Share income particulars from the firm in which the assessee was a partner was not received in time. 2. Non-receipt of correct statement of account from M/s APSFC which had financed for the lorries plied by the assessee was also one of the causes for filing the return late. 3. The assessee filed his return voluntarily, paid all taxes as well as....

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....n. The burden to prove that the delay was for reasonable cause is on the assessee and he failed to discharge the said burden and in those circumstances, the penalty levied is quite justifiable. He relied upon the following decisions : 1. Kunj Behari Lal Lalta Prasad v. ITO [1983] 144 ITR 583 (All.) 2. Addl CIT v. Mohammed & Sons [1985] 154 ITR 220 (Raj.) 3. Haryana Iron & Steel Rolling Mills v. CIT [1987] 164 ITR 779 (Punj. & Har.). (5) Charging of interest does not preclude the other modes of ensuring compliance namely levy of penalty and prosecution and therefore the assessee's plea that he had paid all taxes and also the interest cannot be considered to be germane while considering his liability under section 271(1)(a). Reliance is placed upon Addl. CIT v. Dargapandarinath Tuljayya & Co. [1977] 107 ITR 850 (AP)(FB) and CIT v. Gangaram Chapolia [1976] 103 ITR 613 (Ori.) (FB). 3. Thus we have heard the arguments advanced on both sides fully and completely. The learned counsel for the assessee in reply submitted that it is no doubt true that he estimated his income on lorry transport business. But in order to make a proper estimation he requires the interest particul....

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....at business, the fact that the statement of account was sent by the APSFC late would not have any relevance to estimate the income derived from the lorry business. The burden to prove the reasonable cause for the delay lies on the assessee. It is not simply enough for the assessee to set up an explanation. It is also necessary for him to prove the explanation which he had himself offered. Unless his explanation is fully proved he cannot absolve himself from the liability under section 271(1)(a). In a similar case which came up before the Bombay High Court in Vithaldas Jayawant's case the assessee in that case offered an explanation that on or about 15-6-1963 it had applied for extension of time and that the account books had not been received from its branches and the Chief Accountant had been ill. However, there was no receipt acknowledging receipt of any such application nor was a copy of such explanation produced. No evidence was adduced by the assessee as to when the books were actually received or as to the illness of the Chief Accountant. The Bombay High Court held that imposition of penalty was justified. Now in this case also there was no proof that the APSFC had sent the s....

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.... In that case, original return under section 139(1) and (2) was filed late or beyond time prescribed therefor. Even after the said return was subsisting after the Amnesty Scheme came into operation, another return was filed showing higher income than what was shown in the original return. However, it was either by inadvertence or by ignorance not superscribed that it was filed under Amnesty Scheme. In that case the assessee appears to be a partnership firm. Along with the partnership firm, all its partners also filed returns under Amnesty Scheme in which they have admitted more income and paid more taxes. The question before the Tribunal was whether the return filed under the Amnesty Scheme was really a return intended to be one filed under the Amnesty Scheme. Having regard to the facts and circumstances of that case, the Tribunal found that the said return should be held to be an amnesty return. Nowhere they have laid down the broad proposition that a return filed while the Anmesty Scheme is in operation should be deemed to be an amnesty return which really is the proposition for which the decision is sought to be made use of. Thus we hold that Rawoof Enterprises' case has no appl....