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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 22/JPR/2023
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR MkWa- ,l-lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 22/JPR/2023 fu/kZkj.k o"kZ@Assessment Years : 2010-11 cuke Om Prakash Sharma HUF ITO,’ Vs. 1655, Jat ke Kuwa Ka Rasta, Ward-4(1), Jaipur. Near Mission School, Chandpole Bazar, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAAHO1118 B vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : None jktLo dh vksj ls@ Revenue by : Ms Monisha Choudhary (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing 22/02/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 28/02/2023 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M.
This is an appeal filed by the assessee against the order of the National Faceless Appeal Centre, Delhi [hereinafter referred to as “NFAC/CIT(A)”], dated 01.11.2022 for the assessment years 2010-11.
At the outset of hearing, the Bench observed that there is delay of 14 days in filing the appeal by the assessee for which the ld. AR of the assessee
2 Om Prakash Sharma HUF vs. ITO did not filed an application for condonation of delay but none appeared on behalf of the assessee. 3. During the course of hearing, the ld. DR has no objection to assessee’s application for condonation of delay and prayed that Court may decide the issue as deem fit and proper in the case.
We have heard the DR and perused the materials available on record. The prayer as mentioned above by the assessee for condonation of delay of 14 days has merit and we concur with the submission of the assessee. Thus the delay of 14 days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. MSt. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause.
The assessee has raised the following grounds:-
5. “1. That the learned Commissioner of Income Tax (Appeale) has crossly erred in not allowing deduction u/s 80P of Rs. 94,77,887/- being due tax was deposited on 11.11.2019 but return was filed on 04.09.2022 due to unavoidable circumstances.
2. That the order of the learned AO and commissioner of Income Tax (Appeals) may kindly be set aside and returned income may kindly be accepted.”
3 Om Prakash Sharma HUF vs. ITO 6. None appeared on behalf of the assessee however, the Bench decided to proceed the matter on merit based on the materials available on record, concerning the issue in question.
7 The assessee has filed the appeal before the ld. CIT(A) who after hearing the contention of the assessee dismissed the appeal of the assessee by giving his following relevant findings on the issue:-
“5.1. The grounds and submissions of the appellant have been considered. Order u/s 271F has also been perused. The appellant's contention is that he did not file the return of income as he was under belief that his income was below the exemption limit and therefore not required to file the return. However, there was no compliance to the notices issued by the AO, during the proceedings u/s 271F. As per the order u/s 271 F, the appellant income was assessed at Rs 25,77,750/- passed u/s 144 r.w.s 147 which by implication means that during assessment proceedings the appellant failed to produce relevant details and this income was in excess of basic exemption limit. It is observed that the grounds raised are interconnected to each other, as such the grounds raised are adjudicated together as under. 5.2. As per the annexure to the appeal Form-35, the Department has received the information that the appellant had sold a shop no.183, Municipal no.311/2, Chandpole Bazaar, Jaipur for a sum of Rs.19,51,000/- which was valued by the Sub Registrar at Rs.2577,750/- for the purposes of levy of stamp duty. Thus the Assessing Officer has issued a notice u/s 133(6) dated 03/03/2017 for verification of the sale of property transaction. In response, the appellant has submitted that the said transaction was not disclosed in the return of income. On being verified with the records, the AO found that the appellant had not filed the return of income for the A.Y.2010-11. Therefore after recording reasons and obtaining prior approval from the Pr.CIT
2. Jaipur, a notice u/s 148 was issued on 23/03/2017. However the appellant has not responded to the notice issued u/s 148. Subsequently notice u/s 142(1) dated 07/09/2017
4 Om Prakash Sharma HUF vs. ITO was served for which also there was no response from the appellant. Further a show cause notice dated 20/10/2017 was served on the assessee requesting it to comply by 26/10/2017 for that also there was no response. Under the circumstances, the AO was constrained to pass an order u/s 144 r.w.s.147 on 24/11/2017. 5.3 Also, the assessing Officer has initiated penalty proceedings under the provision of section 271F of the Act dated 24/11/2017 for not filing the return of income for the AY 2010-11 u/s 139(1) within the time or in extended time allowed u/s 139(4) or in response to the notice u/s 148 of the Act, requesting him to explain as to why penalty u/s 271F should not be levied for non-filing of return. In response, the appellant has submitted a reply stating that it has filed an appeal before the Ld.CIT(Appeals) but has not furnished any cogent reason for not filing the return of income. Since the issue of not filing the return of income is different to that of filing of appeal against the order passed u/s 144 r.w.s.147 before the CIT(Appeals), the Assessing Officer has not considered the reply and accordingly the assessing officer imposed a penalty of Rs. 5000/- u/s 271F of the Act for not filling return of Income for the Asst Year 2010-11 as required under sub section (1) of section 139 of the Act. 5.4 The provision of section 271F of IT Act is given below: "Penalty for failure to furnish return of income. 271F. If a person who is required to furnish a return of his income, as required under sub-section (1) of section 139 or by the provisos to that sub-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." 5.5 It is, clear from bare reading of the above provision that whether or not the penalty as envisaged in Section 271 F of the Act is to be imposed, is a matter to be determined by the Assessing Officer within the meaning of the section. He may direct such penalty to be paid and conversely, it would be correct to say, he may choose not to so direct for such penalty to be paid. To determine whether the default was wilful or otherwise, the explanation offered, if any by the appellant, will have to be seen and construed. Section 273B provides that no penalty shall be imposed, inter alia, u/s.271 F where the assessee establishes a reasonable cause for failure referred to in the said section. 5.6 In the case of Shankar Lal Kumawat vs Income Tax Officer, Ward-7(2), Jaipur, [2021] 125 taxmann.com 347 (Jaipur - Trib.), the Hon'ble ITAT
5 Om Prakash Sharma HUF vs. ITO JAIPUR BENCH 'A' had held that where assessee had not filed its return of income on ground that his income did not exceed maximum non-taxable amount as his income was exempt under section 54, in view of fact that assessee's total income without giving effect to provision of section 54 came to an amount which exceeded maximum amount not chargeable to tax, assessee was required to file his return of income, and the penalty under section 271F levied upon him was justified. 5.7 In the instant case, the AO had the information that during the financial year 2009-10 the appellant had taxable income and the appellant was also aware of it. 5.8 In view of the above discussion and the material made available in the system, the instant appeal, the undersigned find no merit and substance in the matter, and accordingly dismissed.”
Per contra, the ld. DR relied on the order of the lower authorities.
We have considered the contention of Sr DR and perused the 9. orders of the authorities and the material available on record. The Bench noted that the ld. CIT(A) has decided the appeal of the assessee in detail considering the submissions of the assessee. The ld. CIT(A) has also upon relying the decision of the Coordinate Bench in case of Shankar Lal Kumawat vs. ITO (2021) 125 taxmann.com 347 wherein the Coordinate Bench has held “that where assessee had not filed its return of income on ground that his income did not exceed maximum non-taxable amount as his income was exempt under section 54, in view of fact that assessee’s total income without giving effect to provision of section 54
6 Om Prakash Sharma HUF vs. ITO came to an amount which exceeded maximum amount not chargeable to tax, assessee was required to file his return of income, and the penalty under section 271F levied upon him was justified.”
Being consistent to the finding given by the Coordinate Bench we are of the considered view that when the assessee is not filing the return of income in the proceedings before the lower authorities and did not file justification for the same the levy of penalty by the lower authorities sustained.