2016 (12) TMI 1346

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....ng the penalty under section 271(1)(c) of the Income tax Act, 1961 of Rs. 8,50,918/-, by a) Not considering the fact that the appellant had already got his personal accounts audited within the due date of filing the Return and that non filing in time was due to circumstances beyond his control, b) holding that since the Income tax Return is filed after the search, the appellant has concealed the particulars of income or furnished in accurate particulars of income which will rank for imposition of penalty under section 271(1)(l)(c) of the Income tax Act, 1961; c) not considering the fact that the returned and assessed income of Rs. 34,58,918/- does not constitute any concealed income as no documents pertaining to his individual income were found. d) not considering the fact that the appellant had always filed his Income tax Return and had no reason not to file his return for this year. Hence, the penalty levied of Rs. 2,63,237/- may please be cancelled." 3. In this appeal, the assessee is aggrieved by the assessment order of the A.O. in levying of the penalty u/s 271(1)(c) of the Act amounting to Rs. 8,50,918/- vide his order dated 22nd June, 2011, which was confirm....

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....action on 20-10-2010 and that too in response to notice u/s.153A of I.T. Act. (b) In the reply, A.R. has not mentioned the names and addresses of any of the firms whose audit was pending and wherein the assessee was a partner. Further, assessee has not furnished any reasonable cause as to why the audit of any of these firms got delayed. Therefore, the explanation furnished by the AR cannot be relied upon. (c) In case of Dr. Mohd. Abdul Khadir (2003)260 ITR 650 (Mad), it has been held that penalty u/s. 271(1)(c) can be levied if return is filed after detection of concealed income. 4. In view of the above, I am satisfied that the assessee's case on these grounds is found fit for imposition of Penalty u/s 271(1)(c) for concealing particulars of income. The minimum penalty (being 100% of the tax sought to be evaded) is Rs. 8,50,918/- The maximum penalty (being 300% on the tax sought to be evaded) is Rs. 25,52,754/-. 5. The assessee is hereby directed to pay a sum of Rs. 8,50,918/- (being the minimum amount) as penalty u/s 271(1)(c) of the IT Act, 1961." 5. Aggrieved by the penalty order dated 22-06-2011 passed by the A.O. u/s 271(1)(c) of the Act, the assessee filed h....

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....was no intention not to file his tax return. The asseessee has placed reliance on the recent decision of the Mumbai bench of the Tribunal in the case of ITO v. Gope M. Rochlani in ITA No.7737/Mum/ 2011 wherein it was held that the words "due date" occurring in clause (b) of Explanation 5A to Section 27l(1)(c) of the Act are not to be read as "due date provided in Section 139(1)" but can very well be inferred to mean the date of filing the return of income u/s 139(4) of the Act. The assessee submitted that the return of income was filed on 20th October, 2010, which was within the time prescribed u/s 139(4) of the Act and hence the assessee would get the benefit under clause (b) of Explanation 5A to Section 271(1)(c) of the Act. The ld. CIT(A), however, rejected the contentions of the assessee and held that mens rea is no longer an essential ingredient for the levy of penalty u/s 271(1)(c) of the Act as held by the Hon'ble Apex Court in the case of Union of India & Ors. v. Dharamendra Textile Processors & Ors., reported in 306 ITR 277 (SC). Section 271(l)(c) of the Act indicates the element of strict liability on the assessee for the concealment or for giving inaccurate particula....

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....see also derived house property income, income from other sources and capital gains. It is the contention of the assessee before authorities below that accounts of two of the partnership firm's namely Neeta Developers and Choice Construction Chemicals were not ready and hence the profit could not be determined as the accounts of the firm was not finalized. Hence, the assessee could not file the return of income in time as the share of the assessee from the said firm could not be determined . The assessee submitted before authorities below that there was severe financial crunch due to which taxes could not be paid in time and which has led to the non-filing of return in time. The assessee had belatedly paid the taxes along with the interest, however, evidence could not be brought before the ld. CIT(A) for proving financial difficulties in payment of taxes . The authorities below have invoked Explanation 5A to section 271(1)(c) of the Act which reads as under:- "[Explanation 5A.- Where, in the course of a search initiated under section 132 on or after the 1st day of June, 2007, the assessee is found to be the owner of- (i) any money, bullion, jewellery or other valuable article ....