GOBARDHAN MATIA vs. ACIT, BHUBANESWAR

It was submitted by ld AR that the assessee was in the process of It was submitted by ld AR that the assessee was in the process of It was submitted by ld AR that the assessee was in the process of collecting the copy of the seized documents. It was submitted that collecting the copy of the seized documents. It was submitted that collecting the copy of the seized documents. It was submitted that consequently, the assessee had not filed the return of income. It was the the assessee had not filed the return of income. It was the prayer that the penalty as levied by the AO and confirmed by the ld CIT(A) prayer that the penalty as levied by the AO and confirmed by the ld CIT(A) prayer that the penalty as levied by the AO and confirmed by the ld CIT(A) may be deleted. may be deleted.

In reply, ld CIT DR submitted that the issue was covered against the assessee by the decision of this Co-ordinate bench in the case of Seerajudin & Co. in & 576/CTK/2013 order dated 25.10.2019, wherein, the penalty u/s.271F of the Act has been confirmed by the Tribunal. It was further submitted that in para 4 of the order of the ld CIT(A), the ld CIT(A) has categorically given a finding that there has been no deficiency in service of notices and the AO has proper jurisdiction for issue of notice u/s.153A of the Act. He also submitted that the ld CIT(A) has given categorical finding that Xerox copies of the seized documents have been given to the assessee within 2-3 months. It was the submission that the order of the ld CIT(A) was liable to be upheld.

We have considered the rival submissions. The levy/confirmation of penalty is based on the facts of each case. There is no presumption that the assessee is willfully violating the law. It is an admitted fact that notice u/s.153A has been served on the assessee and the assessee is required to file the return within 30 days. It is also an admitted fact that for obtaining of the Xerox copies of the seized document, it took more than 2-3 months. Just by obtaining of xerox copies of seized documents, the return cannot be filed. It has to be co-related, verified, examined and reconciled before the return is filed. The filing of return beyond the due date is admittedly invalid return as there is no provision for filing the return belatedly once notice u/s. 153A has been issued. This being so, we are of the view that P a g e 2 | 3 & 574/CTK/2013 Assessment Years : 2008-09 & 2009-10 the assessee had a valid ground for non-filing of return. Accordingly, penalty levied by the AO and confirmed by the ld CIT(A) is deleted.

In the result, both the appeals of the assessee are allowed.