ORIENTAL DYEING & FINISHING MILLS v. INCOME TAX OFFICER - 1985-LL-0718-1

Citation	1985-LL-0718-1
Appellant Name	ORIENTAL DYEING & FINISHING MILLS
Respondent Name	INCOME TAX OFFICER
Court	ITAT
Relevant Act	Income-tax
Date of Order	18/07/1985
Assessment Year	1973-74
Judgment	View Judgment
Keyword Tags	late filing of return
Bot Summary:	There have been shifting explanations about the late filing of return given by the assessee and certain probabilities and possibilities indicate such as that normally returns are filed in time by the assessee and most probably this return was given to the Income-tax lawyer who might not have filed the same in time, as there was change of lawyer etc. Counsel for the assessee before the two lower authorities as also before us, can hardly come to the assessee s rescue. On perssal of record, we however, find that sum of Rs. 10,922 was charged under s. 139(8) in the instant case as interest and it was paid by the assessee, as verified from the challan available on revenue s record. We are not going into the other reasons forwarded, though it is not clear as to how total penalty of Rs. 18,331 was reduced by the AAC to Rs. 9,166 as he took into consideration conduct of the assessee in respect of assessment years right from 1971-72 to 1972-73 and he found that some of the returns were filed in time while others were late. ITA No. 117 The revenue in its appeal has contested the reduction of penalty from Rs. 18,331 to Rs. 9,166. Since we have allowed the assessee s appeal, automatically the Revenue s appeal is not left with any life. In the result, assessee s appeal is allowed whereas the Revenue s appeal is dismissed.

Both these appeals are in respect of penalty for late filing of return under s. 271(1)(a) which was levied by ITO is sum of Rs. 18,331 and reduced by AAC to Rs. 9,166. There have been shifting explanations about late filing of return given by assessee and certain probabilities and possibilities indicate such as that normally returns are filed in time by assessee and most probably this return was given to Income-tax lawyer who might not have filed same in time, as there was change of lawyer etc. That omission was unintentional and, therefore, it was reasonable cause. But fact is that return was due to be filed on 31st March, 1973 whereas it was filed on 9th March, 1977. probabilities and possibilities indicated by ld. counsel for assessee before two lower authorities as also before us, can hardly come to assessee s rescue. On perssal of record, we however, find that sum of Rs. 10,922 was charged under s. 139(8) in instant case as interest and it was paid by assessee, as verified from challan available on revenue s record. Therefore, penalty in case cannot be sustained in light of Supreme Court decision in case of CIT vs. M. Chander Shekhar (1985) 44 CTR (SC) 110: (1985) 151 ITR 433 (SC). We have dealt with identical issue in case of Piyara Lal Mehandiratta & Co. ITA No. 46/Chandi/84, dt. 25th May, 1984. Therefore, on that basis, we cancel penalty. However, we are not going into other reasons forwarded, though it is not clear as to how total penalty of Rs. 18,331 was reduced by AAC to Rs. 9,166 as he took into consideration conduct of assessee in respect of assessment years right from 1971-72 to 1972-73 and he found that some of returns were filed in time while others were late. But we are not concerned with that aspect of matter, as we have cancelled penalty on simple basis that since s. 139(8) interest stands charged, in light of CIT vs. M. Chander Shekhar (1985) 44 CTR (SC) 110: (1985) 151 ITR 433 (SC) penalty cannot be sustained. ITA No. 117 revenue in its appeal has contested reduction of penalty from Rs. 18,331 to Rs. 9,166. Since we have allowed assessee s appeal, automatically Revenue s appeal is not left with any life. In result, assessee s appeal is allowed whereas Revenue s appeal is dismissed. *** ORIENTAL DYEING & FINISHING MILLS v. INCOME TAX OFFICER

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