By Ashok Dhere, Jagdish D. Shah, Chartered Accountants
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21 ADIT (E) v. Shri Vardhaman Sthanakvasi Jain
Sangh
ITAT ‘G’ Bench, Mumbai
Before R. K. Gupta (JM) and R. K. Panda (AM)
ITA Nos. 961 to 965/Mum./2006
A.Y. 1998-99 to 2002-03. Decided on : 16-5-2008
Counsel for revenue/assessee : Malathi Sridharan/ K. Shivaram
and Paras Savla
S. 272A(2)(e) of the Income-tax Act, 1961 — Penalty for delay
in furnishing of return — Delay was on account of non-availability of the
accounts — Whether cause of the delay was reasonable to condone the delay —
Held, Yes.
Per Bench :
Facts :
In respect of the years under appeal there was delay in
filing of returns of income which ranged between 553 days to 1,649 days. The
delay according to the assessee, was due to non-availability of accounts which
were taken by the accountant of the assessee and which could be obtained by the
assessee after long persuasion, in the year 2003-04. This resulted into delay in
finalisation of accounts and in auditing thereof. However, according to the
Assessing Officer, there was no reasonable cause for the failure to file the
return within the stipulated time and relying on the Bombay High Court decision
in the case of Malad Jain Yuvak Mandal Medical Relief, levied a penalty
u/s.272A(2)(e) of the Act, which aggregated to Rs.6.44 lacs computed @ Rs.100
for each day of default. On appeal, the CIT(A) relied on the decisions listed at
S. Nos. 2 to 4 below and deleted the penalty.
Being aggrieved, the Revenue went in appeal before the
Tribunal and relied on the order of the Assessing Officer, and the Bombay High
Court decision relied on by the Assessing Officer.
Held :
The Tribunal agreed with the CIT(A). Further, according to
the Tribunal, the returns filed by the assessee were non-est returns.
Therefore, relying on the Tribunal decision in the case of Rupam Cut Piece
Centre, it held that no penalty can be imposed.
Cases referred to :
1. Rupam Cut Piece Centre, 42 TTJ 533
2. CIT v. Sulekha Works Pvt. Ltd., 156 ITR 190
(Cal.)
3. CIT v. Vishnu Brass Parts Works Taxation, 48(1)
Guj.
4. CIT v. Maheshprasad Gupta, 178 ITR 468 (MP)
5. DIT (Exemption) v. Malad Jain Yuvak Mandal Medical
Relief, 250 ITR 488 (Mum.)
