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Facts
The assessee, a Non-Resident Indian, received a loan of USD 12,00,000 from an overseas party for business in the USA, which was handled through US bank accounts and supported by a promissory note. The assessee believed no Indian tax return was necessary as the transaction had no nexus with India and was already substantively added in her brother's assessment.
Held
The Tribunal held that the assessee had a reasonable and bona fide belief that no taxable income accrued in India, excusing the failure to file a return. Therefore, the penalty under Section 271F was unsustainable.
Key Issues
Whether the penalty under Section 271F for non-filing of return is sustainable when the assessee had a reasonable and bona fide belief that no income accrued in India.
Sections Cited
271F, 139(1), 153C, 273B, 69, 132
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Income Tax Appellate Tribunal, “D” BENCH, AHMEDABAD
Before: SHRI SIDDHARTHA NAUTIYAL & SHRI NARENDRA PRASAD SINHA
O R D E R
PER SIDDHARTHA NAUTIYAL - JUDICIAL MEMBER:
These are appeals have been filed by the Assessee against order passed by Ld. Commissioner of Income Tax (Appeals)-13, (in short “Ld. CIT(A)”), Ahmedabad vide orders dated 28.01.2025 against levy of penalty under Section 271F of the Act by the Assessing Officer and later confirmed by Ld. CIT(A), for the impugned assessment years under consideration. Since common facts and issues for consideration are involved for all the years under consideration, all three appeals are disposed of by way of a common order.
We shall first discuss the assessee’s appeal (in (A.Y. 2014-15)
The assessee has taken the following grounds of appeal: to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 2– (A.Y. 2014-15)
1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has grievously erred in confirming the penalty of Rs. 5,000/- u/s. 271F of the Act, without considering the submission of the appellant filed to him during the course of appellate proceedings and has illegally and incorrectly decided the issue against the appellant. The Hon’ble Bench is prayed to delete such illegal penalty of Rs. 5,000/- u/s. 271F of the Act and grant to that extent.
2. The appellant craves leave to add, alter or amend any of the aforesaid ground or grounds if necessary.”
(A.Y. 2016-17) “1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has grievously erred in confirming the penalty of Rs. 5,000/- u/s. 271F of the Act, without considering the submission of the appellant filed to him during the course of appellate proceedings and has illegally and incorrectly decided the issue against the appellant. The Hon’ble Bench is prayed to delete such illegal penalty of Rs. 5,000/- u/s. 271F of the Act and grant to that extent.
2. The appellant craves leave to add, alter or amend any of the aforesaid ground or grounds if necessary.”
(A.Y. 2017-18) “1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has grievously erred in confirming the penalty of Rs. 5,000/- u/s. 271F of the Act, without considering the submission of the appellant filed to him during the course of appellate proceedings and has illegally and incorrectly decided the issue against the appellant. The Hon’ble Bench is prayed to delete such illegal penalty of Rs. 5,000/- u/s. 271F of the Act and grant to that extent.
2. The appellant craves leave to add, alter or amend any of the aforesaid ground or grounds if necessary.”
The brief facts of the case are that a search and seizure operation under section 132 of the Income-tax Act, 1961 was conducted on 23.01.2020 in the case of Avani Group of Vadodara, during which certain incriminating documents and digital data relating to Smt. Avani D. Shah were found at the premises of Shri Harsh Dipak Shah and M/s. Avani Petrochem Pvt. Ltd. Based on the seized material, proceedings under section 153C were initiated for assessment year 2014-15 by issue of notice dated 26.03.2021 requiring to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 3– the assessee to furnish her return of income within 30 days. However, no return was filed. On examination of the seized material, the Assessing Officer noted an email dated 24.03.2014 between the assessee, her father, and her brother, wherein the assessee confirmed receipt of a loan of USD 12,00,000 (equivalent to ₹7,32,68,860) from one Rohit (Papenji LLC). Accordingly, a show-cause notice was issued on 14.03.2022 proposing to treat the amount as an undisclosed cash loan.
In response, the assessee filed a detailed written submission contending that she was a Non-Resident Indian residing in the USA for over twenty years and had borrowed the said amount jointly with her husband, Shri Sameer Shah, from M/s. Papenj LLC, Morton Grove, Illinois, under a duly executed promissory note dated 17.06.2013 for business purposes in the USA. The assessee explained that the loan transactions occurred entirely in the USA through her U.S. bank accounts, and no amount was ever remitted or utilized in India. It was further submitted that her father, Shri Dipak J. Shah, acted only as a moral guarantor, no repayments were made from India, and the loan continued to be reflected as outstanding in her U.S. books, thereby confirming that it had no nexus with any Indian income or asset. The assessee also pointed out that the same transaction had already been examined and substantively added to the income of her brother, Shri Harsh D. Shah, in his assessment order for A.Y. 2014-15 by DCIT, Central Circle-2, Vadodara, and therefore any further addition in her case would result in duplication and double taxation.
After considering the submissions, the Assessing Officer noted that while the substantive addition of ₹7,32,68,860/- had been made in the hands to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 4– of Shri Harsh D. Shah under section 69 of the Act, it was not conclusively established who was the real beneficiary of the loan transaction. Accordingly, to safeguard the interest of the Revenue, the Assessing Officer completed the assessment under section 153C read with section 144 on 19.05.2022, adding ₹7,32,68,860/- to the total income of the assessee on a protective basis as unexplained investment under section 69 of the Act.
Further, since the assessee had neither filed her return of income under section 139(1) within the prescribed time nor in response to notice under section 153C, penalty proceedings under section 271F were initiated. The Assessing Officer held that since the assessee had entered into substantial financial transactions during the year, her total income exceeded the basic exemption limit, and she was legally required to furnish a return of income under section 139(1) of the Act. In the absence of any reasonable cause or explanation for failure to do so, the Assessing Officer held that the case attracted penalty under section 271F of the Act. Accordingly, a penalty of ₹5,000 was imposed for failure to file the return of income within the prescribed time, and demand notice was issued to the assessee. In appeal, CIT(Appeals) confirmed levy of penalty u/s 271F of the Act by the Assessing Officer.
The assessee is in appeal before us against the order passed by CIT(Appeals) dismissing the appeal of the assessee.
Before us, the Counsel for the assessee submitted that in this case, the assessee is a Non-Resident Indian since past twenty years. In this case, the assessee along with her husband had borrowed a sum of Rs. 1 million dollars to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 5– in NEPLJLLC in USA. The said amount was transferred to the assessee from USA itself and no payment was made to the assessee from India. Further, the assessee has shown this amount as outstanding in it’s USA books of accounts. The assessee is a daughter of Shri Dipak J Shah, who stood as a guarantor on behalf of the assessee with respect to the loan taken by the assessee alongwith her husband in USA. However, no payment has been made by Shri Dipak Shah on behalf of the assessee till date. The above mentioned loan transactions have taken place in USA and the promissory note was also made in USA between the lender and the assessee. Accordingly, in view of this fact, since assessee had not earned any income from India and had only taken an overseas loan from an overseas party, the assessee was under bona fide belief that it was not liable to file tax return in India. Accordingly, it was submitted that in light of these facts, there is no occasion to impose penalty under Section 271F of the Act for failure to file return of income in India, looking into the instant facts.
In response, Ld. DR was of the view that once notice under section 153C of the Act has been issued to the assessee, then the assessee is under an obligation to file return of income and failure / omission on the part of the assessee to file return of income would attract penalty under section 271F of the Act.
We have heard the rival contentions and perused the material on record.
Before going into the assessee’s specific set of facts, it would be useful to discuss some relevant judicial precedents on the subject. to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 6– 12. In the case of Commissioner of Income-tax vs. Kanubhai Muljibhai Patel [2008] 306 ITR 179 (Gujarat), the High Court held that where assessee filed return of income for assessment year 1979-80 on 23-3-1982 showing amount received on sale of agricultural land as exempt in view of Bombay High Court's decision in Manubhai A. Shet v. ITO which was delivered only in July, 1980, a bona fide belief as to exemption of said income could be entertained by assessee only after decision of Bombay High Court and, therefore, it was only after July, 1980 that penalty u/s 271(1)(a) was not imposable upon assessee. In this case, the brief facts of the case are that the assessee, a Hindu Undivided Family, filed its return of income for the assessment year 1979-80 on March 23, 1982, declaring nil income, though the due date for filing was July 31, 1979. The delay of 32 months led the Assessing Officer to levy a penalty of ₹32,130 under section 271(1)(a) of the Income-tax Act, 1961, which was upheld by the Commissioner (Appeals). On further appeal, the Tribunal held that the assessee had reasonable cause for delay up to August 1980, as the Bombay High Court in Manubhai A. Sheth v. N. D. Nirgudkar, Second ITO [1981] 128 ITR 87 had held that capital gains on sale of agricultural land were not taxable, and accordingly reduced the default period to 12 months. The Revenue contended before the High Court that the Tribunal erred in accepting the assessee’s explanation for part of the delay. The Gujarat High Court, however, held that the existence of reasonable cause was a question of fact and that the Tribunal’s finding did not involve any question of law. The Court thus upheld the Tribunal’s decision and answered the reference in favour of the assessee and against the Revenue, with no order as to costs. to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 7–
13. In the case of S. Jayanthi Shri vs. Assistant Commissioner of Income-tax, Central Circle-I, Coimbatore [2016] 75 taxmann.com 248 (Madras)/[2017] 244 Taxman 295 (Madras), the High Court held that where a cause is found to be reasonable for non-filing of return immediately in response to notice issued under section 153A, such cause can also be construed as a reasonable cause, while considering as to whether penalty has to be levied under section 271F of the Act. While passing the order, the High Court made the following observations:
“10. Section 271F of the Act deals with penalty for failure to furnish the return of income, it states that if a person, who is required to furnish the return of his income, as required under Section 139(1) of the Act or by the provisos to that Section, fails to furnish such return before the end of the relevant assessment year, the Assessing Officer may direct that such person shall pay, by way of penalty, a sum of five thousand rupees; Section 273B deals with penalty not to be imposed in certain cases, it states that notwithstanding anything contained in the provisions of clause (b) of sub-section (1) of Section 271, Section 271A, Section 271AA, Section 271B, Section 271BA, Section 271BB, Section 271C, Section 271CA, Section 271D, Section 271E, Section 271F, etc., no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provision, if he proves that there was a reasonable cause for that failure. Section 271F was inserted in Section 273B by Finance Act, 1997, w.e.f., 01.04.1997, which is much prior to the assessment years in question.
11. Therefore, it has to be seen as to what would be reasonable cause for being entitled to the protection under Section 273B. The meaning of the expression "reasonable cause" could be culled out from certain decisions, which arises under Section 271 of the Act. In CIT v. S. Padmanabhan [2006] 284 ITR 535/155 Taxman 458 (Kar.), where the return was filed pursuant to seizure of the fixed deposits during search, the explanation of the assessee was that he was under bona fide belief that interest was not taxable. The findings of all the authorities was that the explanation was reasonable and no finding that the explanation was false and it was held that there was no question of levy of penalty.
In Jyoti Laxman Konkar v. CIT [2007] 292 ITR 163 (Bom.), there were discrepancies in stock noticed during survey and the assessee meanwhile filed a revised return admitting the value of such discrepancy, it was held that no concealment of income in the original return was established, so that no penalty was exigible.
In CIT v. Kanubhai Muljibhai Patel [2008] 306 ITR 179 (Guj.), it was held that where the assessee had not declared capital gains in the light of the then prevailing law, non- filing of return in time cannot justify penalty. Thus, the facts of each case have to be gone into to examine as to whether there was reasonable cause on the part of the assessee in not filing the return on time. to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 8–
14. In the background of the above legal position, if we examine the case on hand, one fact which strikes the eye is that the petitioner/husband had been approaching the department for furnishing of copies of the documents, which were seized during the search, conducted on 27.11.2013. The representation in this regard was submitted by the petitioner's husband on 26.02.2014. Subsequently, a request was made by him under the RTI Act and he has also preferred an appeal to the Central Information Commission on 30.05.2014.
15. The first respondent by proceedings dated 30.09.2015, informed the petitioner's husband that they have not filed return of income in response to the notice under Section 153A issued for the relevant assessment years, consequent to search under Section 132 of the Act. Referring to the petitioner's letter dated 19.05.2015, stating that due to ill-health and consequent surgery, he could not file returns and requested for taking photostat copies of the documents seized/impounded in their case. The first respondent admitted that this was facilitated and the petitioner/husband has taken copies of all required books and documents seized/impounded in the petitioner's case on 02.06.2015.
Thus, the fact that the petitioner has not filed the return of income was well within the knowledge of the first respondent, even at the time, when notice under Section 153A of the Act was issued. It is not as if, immediately thereafter, proceedings under Section 271F were initiated, but in the interregnum, the petitioner's representation dated 19.05.2015, was taken note of. The first respondent records in her order that in the representation, it was specifically stated that they could not file their return due to ill-health and consequent surgery. 17. That apart, the first respondent records that there is a request for furnishing the photocopies of the documents, which were seized/impounded during the search. This request made by the petitioner's/husband's letter dated 19.05.2015, was complied with on 02.06.2015. Thus, the fact that the petitioner could not file return of income for reasons given in the representation dated 19.05.2015, was found to be acceptable by the first respondent, and there is no finding that the representation is false, while entertaining the request for furnishing the photostat copies of the seized/impounded documents. Therefore, if for such purpose, the cause pleaded by the petitioner was found to be reasonable and consequently their plea that they were unable to file return of income due to certain factors, this yardstick can also be made applicable and extended while considering a proposal to levy penalty under Section 271F. Therefore, if a cause was found to be reasonable and for non-filing of return immediately in response to notice under Section 153A, this Court finds that such cause can also be construed as a reasonable cause, while considering as to whether penalty has to be levied under Section 271F. Therefore, the cause expressed by the petitioner is found to be a reasonable cause and the explanation merits acceptance. 18. With regard to the other allegations made by the petitioner as against the officer in her personal capacity, does not merit acceptance, as it appears to be vague allegation, in any event those allegations are not germane for deciding the legal issue in the instant case. Therefore, all such allegations stand eschewed. 19. The other issue pointed out by the learned Senior counsel for the petitioner is that the counter affidavit has not been sworn to by the first respondent. In the first paragraph of the counter affidavit, the officer has clearly stated that she is the jurisdictional Assessing Officer of the petitioner and it is fairly admitted in the title to the counter, it has been wrongly mentioned as counter of the first respondent, when it should have been mentioned to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 9– as counter affidavit on behalf of the first respondent and this appears to be a bonafide mistake, the explanation offered by the learned counsel for the Revenue is acceptable.
For all the above reasons, the Writ Petition is allowed and the impugned orders levying penalty under Section 271F, for all the assessment years, are set aside. No costs. Consequently, connected Miscellaneous Petition is closed.”
In the case of Smt. Prema vs. Income-tax Officer [2025] 173 taxmann.com 446 (Chennai - Trib.), the ITAT held that penalty under section 271F can be imposed only if Assessing Officer is able to show that assessee had in first place taxable income beyond threshold limit, then only fault can be attributed on assessee for failure to file return of income under section 139(1) of the Act.
In the case of Arjun Dada Kharate v DCIT the brief facts of the case are that the assessees, Shri Arjun Dada Kharate and Shri Bhima Dada Kharate, had sold certain immovable properties at Gat Nos. 150 and 151, Makhmalabad, Nashik, to the Suyojit Group, with Arjun’s share being ₹96,66,666/-. The returns of income for assessment year 2011-12 were filed belatedly on 19.12.2013, declaring total income of ₹43,93,199/-, which led the Assessing Officer to impose a penalty of ₹5,000 each under section 271F of the Income-tax Act, 1961, for failure to file returns within the prescribed time. The Commissioner (Appeals) upheld the penalties. On further appeal, the Tribunal observed that both assessees were illiterate agriculturists who faced financial and family difficulties and were under the bona fide impression that the gains from sale of agricultural land were not taxable. Holding that there existed a reasonable cause within the meaning of section 273B of the Act, the Tribunal deleted the penalties in both cases. Accordingly, both appeals were allowed in favour of the assessees.
to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 10– 16. In the present case, we have carefully considered the rival submissions, perused the material available on record, and examined the facts in the light of judicial precedents cited above. It is an undisputed fact that the assessee, Smt. Avani D. Shah, is a Non-Resident Indian residing in the United States of America for more than two decades and that the impugned transaction of USD 12,00,000 was a loan received from M/s. Papenj LLC, Morton Grove, Illinois, for business purposes in the USA. The assessee has demonstrated that the said transaction was undertaken through U.S. bank accounts, duly supported by a promissory note dated 17.06.2013, and that no part of the amount was ever remitted or utilized in India. It is further established from the assessment record that the same transaction has already been examined and substantively added in the hands of her brother, Shri Harsh D. Shah, in his assessment order for A.Y. 2014-15, and that the addition in the hands of the assessee has been made only on a protective basis. These facts clearly show that the assessee has been able to demonstrate that she was under a bona fide belief that there was no taxable income accruing or arising to the assessee in India during the relevant year and, therefore, she was not required to file a return of income under section 139(1) of the Act. In such circumstances, we find merit in the explanation of the assessee that the failure to file the return of income within the prescribed time was due to a reasonable and bona fide cause and not due to deliberate default or contumacious conduct. The provisions of section 273B of the Act specifically provide that no penalty shall be imposable under section 271F if the assessee proves that there was reasonable cause for such failure. The Hon’ble Gujarat High Court in CIT v. Kanubhai Muljibhai Patel [2008] 306 ITR 179 (Guj.) held that the existence of reasonable cause is a question of fact and that where an assessee to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 11– entertained a bona fide belief regarding taxability, penalty could not be imposed. The Hon’ble Madras High Court in S. Jayanthi Shri v. ACIT [2016] 75 taxmann.com 248 (Mad.)/[2017] 244 Taxman 295 (Mad.) similarly held that where reasonable cause existed for delay in filing return in response to notice under section 153A, such cause could also be construed as reasonable for the purposes of section 271F, and accordingly deleted the penalty. Similarly, the Chennai Bench of the Tribunal in Smt. Prema v. ITO [2025] 173 taxmann.com 446 (Chennai - Trib.) held that penalty under section 271F could be imposed only where the Assessing Officer establishes that the assessee had taxable income exceeding the threshold limit. Further, the Pune Bench of the Tribunal in Arjun Dada Kharate v. DCIT deleted penalty under section 271F where the assessees, being agriculturists, entertained a bona fide belief that their income was not taxable, holding that reasonable cause existed under section 273B of the Act. Applying the ratio of the aforesaid judicial pronouncements to the facts of the present case, we hold that the assessee has been able to demonstrate a reasonable cause within the meaning of section 273B for not filing the return of income, as the impugned loan transaction was purely foreign in nature, not connected with any income accruing or arising in India, and had already been considered in the hands of another person on a substantive basis. Therefore, the levy of penalty under section 271F of the Act is unsustainable in law as well as on facts.
Further, we note that the Assessing Officer had initiated penalty proceedings under Section 271F for non-filing of original return under Section 139(1) of the Act, the due date of which was 31.07.2014. No penalty to 707/Ahd/2025 Avani Dipakbhai Shah vs. ACIT Asst. Years –2014-15, 2016-17 & 2017-18 - 12– proceeding was initiated for non-filing of return in response to notice under Section 153C of the Act. The assessee has demonstrated that on income was earned by her and being a non-resident, she was not required to file any return under the provisions of the Act. Since the penalty under Section 271F was imposed for non-filing of original return under Section 139(1) of the Act and non against non-filing of return under Section 153C of the Act, the same is liable to be cancelled, considering the explanation of the assessee.
Accordingly, the penalty of ₹5,000 imposed under section 271F of the Act and sustained by the learned CIT(A) is hereby directed to be deleted. The appeal of the assessee is allowed.
Since facts and issues for consideration are common for all the years under consideration, penalty imposed under Section 271F of the Act is directed to be deleted for all the years before us.