BISHAMBHAR NATH, A.M. ORDER All these appeals are against orders of AAC confirming levy of penalties imposed by ITO under s. 271(1)(a). assessee has sent by post petition for adjournment which has been rejected. appeals are being decided on merits after hearing departmental representative. 2 . grounds of appeal taken in all these years are identical. grounds are as under: "1. That ld. ITO was not justified in imposing penalty in facts and circumstances of case and AAC in confirming penalty order. 2. That in declared income of Rs. 6,000 penalty for late filing is not legality imposable. 3. That there was no dishonest and contumacious conduct in not filing return. 4. That ratio of decision laid down in case of Noor Khan is applicable to facts of present case. 5. That various decisions cited by ld. AAC do not apply to facts of present case. 6. That penalty order is arbitrary, excessive and unjust. 7. That penalty order is liable to be cancelled." 3. departmental representative argued that there was no force in contentions of assessee that assessee's income was below taxable limit and hence assessee was not liable to levy of any penalty under s. 271(1)(a) for not filing returns voluntarily under s. 139(1) and for delay in filing return. It was argued that case law cited by assessee in its support, namely, decision of Allahabad High Court in CIT vs. Noor Khan & Bros. (1973) 92 ITR 33 8 (All) is not relevant as facts in case under consideration before us are different. In fact, their Lordships of Allahabad High Court in that case held that belief of assessee that total income was below taxable limit must be bona fide before assessee could be held as not liable for levy of penalty under s. 271(1)(a). Here in case at present under consideration before us, facts clearly show that assessee had much higher incomes in all years under consideration. total income finally computed after giving appeal effects are as under: Asst. yr. 1972-73 Rs. 74,0 8 " 1973-74 Rs. 4 8 , 8 " 1974-75 Rs. 57, 8 20 " 1975-76 Rs. 41,600 " 1976-77 Rs. 31,350 4 . assessee had filed returns showing total income of Rs. 6,000 in 1972-73, Rs. 6,000 in 1973-74 and Rs. 6,000 again in 1974-75. In asst. yrs. 1975-76 and 1976-77, total incomes declared in returns were Rs. 6,500 and Rs. 7,500 respectively. As against these figures of total incomes declared by assessee in its returns, assessed income finally computed were made at much higher figures (mentioned above). There was raid in premises of assessee as result of which books of account and documents were seized. These books of account showed money lending transactions of assessee including pawning and books contained credits in various names which could not be proved to be genuine. After addition of these unexplained amounts, total incomes were computed finally at figures mentioned above. It was thus argued that assessee could not have bona fidely believed that his total income in various years was paltry figure of Rs. 6,000, Rs. 6,500 as per figures declared by assessee by estimate in return filed. It was argued by departmental representative that there was no question of bona fide belief of assessee as assessee himself showed figures of total incomes in return on estimate inspite of fact that it had books of account which were seized from business and residential premises of assessee on 22nd June, 1976. decision of Allahabad High Court, relied on by assessee, is thus of no help to assessee as here facts clearly showed that assessee could not have bona fidely believed that incomes shown at small figures in returns filed by estimate were correct. departmental representative relied on following case laws in support of contention that assessee was liable to levy of penalties under s. 271(1)(a) and that Department has not to prove that assessee was guilty of mens rea before levy of penalties in question. Further it was argued that now it was settled law that even though assessee had filed returns showing incomes below taxable limit for purpose of levy of penalty under s. 271(1)(a), income finally assessed has to be seen and income declared is not of material consequence. following case laws have been relied on by departmental representative: (1) CIT vs. Ganga Ram Chopalia 1973 CTR (Ori) 25 : (1976) 103 ITR 613 (Ori) (FB), decision of Orissa High Court, F.B. In this case, Lordships laid down that burden of proof of reasonable cause for purpose of s. 271(1)(a) was on assessee as matter was within his personal knowledge. burden could be discharged by preponderance of probabilities as in civil case and not necessarily by proof beyond reasonable doubt. (2) Addl. CIT vs. Dargapandarinath Tuljayya & Co. (1977) 107 ITR 8 50 (AP) (FB). In this case, it has been held by their Lordships of Andhra Pradesh High Court that elements of mens rea need not be established before levy of penalty under s. 271(1)(a). (3) Pratap Steel Rolling Mills vs. CIT (197 8 ) 111 ITR 1 8 3 (P&H). It was held in this case that if return was belated, penalty under s. 271(1)(a) was leviable and it would be immaterial that penalty would not have been leviable but for addition in total income made by ITO. (4) Kunj Behari Lal Lalta Prasad vs. ITO (19 8 3) 144 ITR 5 8 3 (All). Here in this case, their Lordships of Allahabad High Court have held that assessee has to explain cause of delay in filing return and it is for IT authorities to determine whether cause is reasonable or not. Their Lordships held in this case that even when return was filed below exemption limit, levy of penalty for delay in filing return was valid as return has to be filed within time. 5 . On basis of above case laws, it was argued on behalf of Department that levy of penalties in various years as fully justified. 6 . We have examined facts of case and rival view points. It appears from order of Tribunal in quantum appeals of assessee that for asst. yr. 1972-73, first return was filed by assessee voluntarily on 29/30th Dec., 1972. For other years, no returns were filed under s. 139 and returns were filed only later in response to notice under s. 14 8 . Thus, as far as asst. yr. 1972-73 is concerned, levy of penalty should only be confirmed for period of delay upto 29/30th Dec., 1972. ITO is not correct as far as asst. yr. 1972-73 is concerned in mentioning that return was filed only on 2 8 th March, 197 8 . It was filed earlier as is mentioned in quantum order of Tribunal. For other years, computation of period of delay is correct. 7 . huge income, on which assessments have been finally computed after giving effect to orders of appellate authority, clearly shows that assessee had income much above taxable limit in all these years. It could not be held that assessee was under bona fide belief that his income was below taxable limit in all these years. case law cited by assessee in its support CIT s. Noor Khan & Bros. (1973) 92 ITR 33 8 (All) does not help assessee as condition laid down by their Lordships in that case is not met in case of present assessee before us as per reasons mentioned above. There is no other cause forthcoming or mentioned even before authorities below for huge delay in filing returns of various years. In spite of fact that assessee had maintained books of account, which were detected in course of raid, assessee filed return on estimate only at figures below taxable limit. It appears that assessee took this step only to say that assessee was not liable to levy of penalty under s. 271(1)(a) as returns filed by assessee show that his incomes were below taxable limit in all these years. case laws cited by departmental representative, as discussed above, lays down that burden of proof that there was reasonable cause for not submitting return in time is squarely on assessee. Department has not to prove mens rea on part of assessee for purposes of levy of penalty under s. 271(1)(a). Moreover, it has also been held in case laws mentioned above that it is assessed figure which has to be taken as basis for purpose of levy of penalty under s. 271(1)(a). Their Lordships of Punjab & Haryana High Court have held that it would be immaterial that penalty would not have been leviable but for addition of amount by ITO in assessment order. We, therefore, hold that assessee has no reasonable sufficient cause for delay in filing return. assessee's income were above taxable limit and assessee was not under bona fide belief that assessee's incomes were below taxable limit. assessee was liable to levy of penalty under s. 271(1)(a) in all these years. As far as quantum of penalty is concerned, AAC has already given direction in appellate order that penalty should be re-computed on basis of incomes finally assessed after giving effect to appellate order. As far as asst. yr. 1972-73 is concerned, as mentioned above, return was filed on 29/30th Dec., 1972 and not on 2 8 th March, 197 8 . period of delay in this year thus was only of four complete months and not of 67 complete months for which penalty has been levied by ITO for this year. Later notice under s. 14 8 was also issued and if there was any delay in filing return in response to notice under s. 14 8 , said delay may also be counted and added to this period of delay of four months. figure of penalty levied for asst. yr. 1972-73, therefore, should be revised accordingly. Except for this direction, orders of AAC are upheld and appeals of assessee are dismissed. *** PUSKAR NARAIN SARRAF v. INCOME TAX OFFICER