Commissioner of Income Tax vs Vishwant Kumar

This is an appeal u/s 260A of the IT Act, 1961 (hereinafter referred to as Act) against the order dt. 21st Nov., 2002, passed by the Tribunal, Delhi.

Vide the impugned order the Tribunal had disposed of an appeal by the Department and the cross-appeal by the assessed against the order of the CIT(A)-n, New Delhi, dt. 29th Nov., 1996. We feel it will be appropriate to refer to the following content of the order impugned before us rather then mention the facts of the case in detail.

"4. It has been observed by the AO that opportunity was given to the assessed vide letter dt. 24th Jan., 1991- fixing the case for 4th Feb., 1991. In response to notice the assessed has filed a letter stating that return was filed vide receipt No. 36383 and a copy of the same was enclosed. Again in his reply dt. 19th Feb., 1991 he has enclosed a duplicate return stating to have been filed in Distt. VIII(4) vide receipt No. 36383. On scrutiny of the receipt it was not clear when the return was filed. The alleged receipt stamp was found illegible by the AO. Hence, it could not be deciphered as to where this return was filed or when the return was filed. Therefore, the AO observed that this could not be accepted as evidence of filing of return of income for the asst. yr. 1983-84. More, the assessed failed to furnish the proof of filing of the return during the assessment proceedings and even before the CIT(A) and also during the reassessment proceedings. The AO has also noted the fact that the CIT(A) also gave a finding and justified the ITO''s action in making the ex parte order u/s 144 and dismissed the assessed''s appeal. Hence, the AO has assessed the income u/s 144 at Rs. 17,36,520 and assessed the tax at Rs. 11,23,910. He has taken the due date of return as 31st July, 1983 and original assessment made on 25th/31st March, 1986. Therefore, considering the period of default as 31 months, he has imposed a penalty of Rs. 6,96,820 @ 2 per cent per month against which the assessed went in appeal before the CIT(A) who has partly allowed the appeal of the assessed and held that the delay for the major period i.e., up to December, 1986, is liable to be condoned. He held that the penalty is thus liable to be imposed for a period of two months, i.e., after December, 1986, for which there was no good reason for the delay. Against this order of the CIT(A), Revenue as well as the assessed, both are in appeal before the Tribunal.

We have heard Shri Pawan Kumar, Senior Departmental Representative for the Revenue, and Shri Salil Agarwal, learned Authorised Representative for the assessed. It has been argued by the learned Departmental Representative that due date for filing the return was 31st July, 1983 while no return was filed. Date of search was 30th Oct., 1982. Hence, the CIT(A) was not justified in condoning the delay. On the other hand, the learned Authorised Representative for the assessed has argued that the assessed was prevented by sufficient cause for not filing the return and the delay has been rightly condoned by the learned CIT(A) but penalty for two months delay has been retained which is not proper.

After having heard both the parties Authorised Representatives and considering the material on record, we are of the view that the CIT(A) has not erred in condoning the delay up to December, 1986, for reasonable and sufficient grounds and directing the AO to recalculate the penalty for a period of two months on the income finally determined. Hence, we do not find any infirmity in the order of the CIT(A) which we confirm and both the appeals are dismissed.

In the result, the appeals of the Department as well as of the assessed, are dismissed."

The bare reading of the above finding clearly shows that they are finding of facts based upon the record produced before the authorities and no question of law much less a substantial question of law arises for consideration in the present appeal. It will not be proper for this Court to interfere in the impugned order merely on the ground that on the facts aforeindicated, it could be possible to take another view. Substantial question of law should arise in the case before the Court can interfere in such matters. Reference can be made to the Division Bench judgments of this Court in the cases of Mahavir Woollen Mills Assessee Vs. Commissioner of Income Tax, and Commissioner of Income Tax Vs. S.R. Fragrances Ltd., .

It is contended by the learned counsel appearing for the respondent that the account books and other records of the assessed were seized and they were provided inspection of the records only in January, 1986, as such they could not have taken any steps in compliance of the statutory provisions prior thereto. This can hardly be disputed and in fact there is nothing on record before us to indicate to the contrary. Once the assessed was not in a position to have access to his records, there was a sufficient cause before the authorities to treat the period of penalty only for two months as indicated concurrently by the appellate authorities. The authorities concerned have exercised their discretion and we see no apparent perversity in the said order. In fact the discretion has been exercised in consonance with the settled principles of law.