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Income Tax Appellate Tribunal, “C” Bench, Mumbai
Before: Shri B.R. Baskaran (AM) & Shri Pawan Singh (JM)
The appeal filed by the assessee is directed against the order dated 21.3.2014 passed by the learned CIT(A)-16, Mumbai and it relates to A.Y. 2008-09.
The assessee is aggrieved by the decision of the learned CIT(A) in confirming the penalty of ` 5,45,835/- levied by the Assessing Officer u/s. 221(1) of the Act for non-payment of self assessment tax.
Learned counsel appearing for the assessee submitted that the assessee filed its original return of income u/s. 139(1) of the Act on 14.10.2008 for the year under consideration. As per the original return of income, self assessment tax was payable was ` 21,83,340/-. The assessee did not pay self assessment tax and hence the Assessing Officer levied penalty of ` 5,45,835/-
2 CMS DITL LTD. computed @ 25% self assessment tax payable. The assessee subsequently filed revised return of income u/s. 139(5) of the Act on 31.3.2010, as per which self assessment tax payable was worked out at ` 4,68,812/- only. The assessee had challenged penalty order before the learned CIT(A) unsuccessfully and later before the ITAT. The Tribunal, passed an ex-parte order dated 31.5.2011 in wherein the Tribunal has taken note of the fact of filing of revised return of income and hence it restored the matter to the file of the learned CIT(A) for deciding the issue afresh, since the learned CIT(A) has not considered the revised return filed by the assessee. In the set aside proceedings the learned CIT(A) again confirmed the penalty levied by the Assessing Officer and hence the assessee has filed this appeal before us.
Learned counsel appearing for the assessee submitted that the revised return filed by the assessee replaces original return of income and hence penalty, if any, to be levied u/s. 221(1) of the Act should have been levied only on the self assessment tax payable as per revised return of income. Learned AR further submitted that the assessee did not pay self assessment tax as per original return of income, as the assessee was contemplating to file a revised return of income. The assessee also did not pay tax due as per revised return of income, since certain refunds were due to the assessee for earlier years. Accordingly, he submitted that the assessee had sufficient cause for not paying self assessment tax. Accordingly, he prayed that the penalty levied may be deleted.
On the contrary, the learned Departmental Representative submitted that the explanations furnished by the assessee are not supported by any material. Further self assessment tax becomes payable as per provisions of section 140A of the Act upon filing of original return of income. Accordingly he submitted that the Ld CIT(A) was justified in confirming the penalty levied by the AO.
We have heard rival contentions and perused the record. As submitted by the Ld D.R, the self assessment tax becomes payable upon filing of original
3 CMS DITL LTD. return of income. Though the Ld A.R submitted that the assessee did not pay the same on the plea that it was contemplating to file a revised return of income, yet the said submissions have not been substantiated. Further, the assessee has also not paid the tax due as per the revised return of income. Even though the Ld A.R submitted that the assessee sought adjustment of refund due to it, yet the said submissions were also not substantiated with evidences. Under these set of facts, we are of the view that the assessee cannot be considered to have shown sufficient cause for not paying the self assessment tax.
Since the self assessment tax payable as per the revised return of income has come down to Rs.4,68,812/-, we are of the view that it may not be correct to levy penalty, at this stage, on the amount of tax due as per the original return of income. Accordingly we are of the view that the penalty should be levied on the amount due as per revised return of income. However it was not shown to us as to when the self assessment tax was actually paid. Under these set of facts, the assessee should be liable to pay penalty on the amount due as self assessment tax as per revised return of income. Accordingly we are of the view that the penalty may be levied at 30% of the tax due as per the revised return of income. Accordingly we modify the order passed by Ld CIT(A) and direct the AO to levy penalty @ 30% of the tax due as per revised return of income.
In the result, the appeal filed by the assessee is partly allowed.
Order has been pronounced in the Court on 10.11.2016