Seema Pattanayak, Sundargarh V. ACIT, Central Circle, Sambalpur

ITA 221/CTK/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9729 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 15-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation
• Section: 273B; 153A; 148; 132; 144; 139

Judgement Text

P A G E 1 | 11 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NOS.2 17 TO 2 22 /CTK/2018 ASSESSMENT YEARS : 2008 - 09 TO 2013 - 14 SEEMA PATNAIK, C/O . SHANTI MEMORIAL HOSPITAL COMPLEX, UDIT NAGAR, ROURKELA. VS. DCIT, CENTRAL CIRCLE, SAMBALPUR PAN/GIR NO. AASPP 6276 D (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : WRITTEN SUBMISSION FILED BY SHRI P.C.SETHI THROUGH SH RABINDRA KUMAR NAYAK REVENUE BY : SHRI SU BH ENDU DATTA , DR DATE OF HEARING : 0 6 /0 9 / 2018 DATE OF PRONOUNCEMENT : 26 /0 9 / 2018 O R D E R PER N.S.SAINI, AM THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE CONSOLIDATED ORDER OF THE CIT(A) - 2, BHUBANESWAR DATED 27.4.2018 FOR THE ASSESSMENT YEARS 2008 - 2009 TO 2013 - 2014, RESPECTIVELY. 2. THE SOLE ISSUE INVOLVED IN THESE APPEALS IS THAT THE CIT(A) ERRED IN CONFI RMING THE LEVY OF PENALTY U/S.271F OF THE I.T.ACT, 1961 FOR RS.5000/ - IN EACH OF THE ASSESSMENT YEARS UNDER APPEAL P A G E 2 | 11 FOR NO T - FILING THE RETURN OF INCOME IN RESPONSE TO NOTICE DATED 24.8.2016 ISSUED UNDER SECTION 153A OF THE ACT BY 26.9.2016. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER ISSUED NOTICE ON 24.8.2016 U/S.153A OF THE ACT REQUIRING THE ASSESSEE TO FILE THE RETURN OF INCOME IN RESPONSE THERETO BY 26.9.2016 FOR THE ASSESSMENT YEARS 2008 - 2009 TO 2013 - 14. THE ASSESSEE FAIL ED TO COMPLY WITH THE SAID NOTICE. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S.153A R.W.S 144 OF THE ACT. 4. THEREAFTER, THE ASSESSING OFFICER LEVIED PENALTY U/S,.271F OF THE ACT FOR RS.5000/ - FOR EACH ASSESSMENT YEAR FOR NON - FURNISHING THE RETURN OF INCOME IN RESPONSE TO NOTICE ISSUED UNDER SECTION 153A OF THE ACT WITHIN THE TIME SPECIFIED IN THE NOTICE. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). 6. THE CIT(A) CONFIRMED THE LEVY OF PENALTY OBSERVING AS UNDER : I HAVE CAREFULLY ANALYSED THE PENALTY ORDER AND SUBMISSIONS OF THE APPELLANT. FOR THE PURPOSE OF IMMEDIATE REFERENCE, THE PROVISIONS OF 153A OF THE I.T.ACT 1961 ARE REPRODUCED BELOW: 153A( 1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148 SECTION 149, SECTION 151 AND SECTION 153, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS P A G E 3 | 11 ARE REQUISITIO NED 'UNDER SECTION 132A AFTER THE 31 ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL ........... - (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMEN T YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS AT! SHALL SO FAR AS MAY BE, APPLY A CCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139: (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED O R REQUISITION IS MADE. ' IT IS CLEAR FROM THE ABOVE PROVISIONS THAT THE RETURN FILED U / S .153A OF IX ACT. 1961 IS TREATED AS IF IT WAS A RETURN REQUIRED TO B E FURNISHED U/S.139 OF I.T. ACT, 1961. THEREFORE, THE SUBMISSIONS OF THE APPELLANT THAT PENALTY U/S .271F OF I.T, ACT. 1961 CAN NOT HE IMPOSED ON NON - FURNISHING OF RETURN U/S 153A OF I.T. ACT, 1961, IS NOT CORRECT. 4. THIS VIEW IS SUPPORTED BY THE DECISION OF HON'BLE TRIBUNAL. DELHI BENCH, DELHI IN THE CASE OF R,S. INVESTMENT VRS ITO. THE RELEVANT PORTION IS REPRODUCED BELOW: R.S.INVESTMENT VS ITO, (2011) 15 TAXMANN.COM 270 (DELHI) CONFIRMED THE LEVY OF PENALTY U/S.271F OF THE ACT. THE RELEVANT PORTION OF THE ORDER READS AS UNDER: 'THE PROVISIONS OF SECTION 153C UNDER WHICH T HE ASSESSMENT HAS BEEN MADE, PROVIDE IN RESPECT THE ASSESSMENT OF INCOME OF ANY OTHER PERSON IN ADDITION TO THE ASSESSMENT IN THE CASE OF SEARCH O R REQUISITION UNDE R SECTION 153 A. THE PROVISIONS ITSELF PROVID ES THAT THE ASSESSMENT UNDER THIS SECTION SHALL HE MADE B Y THE ASSESSING OFFICER OF SUCH PERSON BY ISSUING THE NOTICE AND ON THAT BASIS, THE ASSESSING OFFICER WILL ASSESS OR REASSESS THE TOTAL INCOME OF SUCH PERSON OR SUCH ASSESSMENT Y EARS IN THE MANNER PROVIDED IN SECTION 153 A. THUS, THE ASSESSMENT AND REASSESSMENT HAS TO B E MADE IN THE MANNER PROVIDED IN SECTION 153A. SECTION 153A PROVIDES THAT THE ASSESSING OFFICER SHALL ISSUE THE N OTICE REQUIRING TO FURNISH RETURN OF INCOME WITHIN A PERIOD AS SPECIFIED IN THE NOTICE. THE ASSESSEE WAS UNDER THE OBLIGATION TO FILE THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IN A PRESCRIBED FORM AND P A G E 4 | 11 VERIFIED IN A PRESCRIBED MANNER ALONG WITH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THE AC T SHALL, AS FAR AS MAY BE , APPLY, ACCORDINGLY AS IF SUCH RETURN WAS A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139. IN VIEW OF THESE THE PLEADINGS OF THE ASSESSEE THAT THE PROVISIONS OF SECTION 271F COULD NOT BE APPLIED WHERE THE RETURN WAS REQUIRED TO BE FURNISHED UNDER SECTION 153C READ WITH SECTION 153A COULD NOT BE AGREED WITH. ALTHOUGH THERE IS NO MINIMUM TIME REQUIRED TO BE GIVEN IN THE NOTICE TO BE ISSUED UNDER SECTION 153A FOR FILING THE RETURN AND ALSO NO SEPARATE FORM HAS BEEN PRESCRIBED, H OWEVER, ASSESSEE IS UNDER LEGAL OBLIGATION TO FILE THE RETURN OF INCOME. THE PHRASE HAS BEEN USED 'SO FAR AS MAY BE' IN SECTION 153 A. THESE WORDS 'SO F AR AS MAY BE' HAVE BEEN USED TO RESTRICT . THE APPLICABILITY OF THOSE PRO VISIONS WHICH ARE INCONSISTENT WITH THE PROVISIONS OF SECTION 153A. MEANING THERE BY THAT BY USING WORD 'SO FAR AS MAY BE IN SECTION 1 53A, T HE PROVISIONS AND REQUIREMENT OF SECTION 139 WHICH ARE NOT INCONSISTENT WITH PROVISIONS OF SECTION 153A SHALL BE APPLICABLE AND COMPLIANCE THEREOF SHALL BE AS MANDATOR Y. THE PROVISIONS IN RESPECT OF THE PENALTY FOR THE VIOLATION OF THE PROVISIONS OF SECTION 1 39 SHALL BE VERY MUCH APPLICABLE WHENEVER THERE IS A VIOLATION OF SECTION 139 READ WITH SECTION 153 A IN RESPECT OF THE F ILING THE RETURN OF IN COME. 5. THE APPELLANT HAS STATED THAT THE AO DID NOT PROVIDE A CERTIFIED COPY OF THE ORDER SHEET AND, THEREFORE, HE COULD NOT REPLY TO THE NOTICE/S.271F OF THE I.T.ACT, 1961. IT IS SEEN FROM THE PENALTY ORDER THAT THE AO HAS PROVIDED CERTIFIED COPY OF ORDER SHEET ON 4.5.2017 TO THE APPELLANT AND AFTER THAT HAS GIVEN FURTHER OPPORTUNITY TO REPLY TO THE PENALTY NOTICE. HOWEVER, THE APPELLANT COULD NOT REPLY AS TO WHAT PREVENTED HIM FROM FILING THE RETURN OF INCOME U/S.153A OF THE I.T.ACT, 1961. THEREFOR E, THE SUBMISSION OF THE APPELLANT ON THIS POINT IS FACTUALLY INCORRECT. 6. CONSIDERING THE ABOVE, PENALTY LEVIED BY THE AO U/S,.271F OF THE I.T.ACT, 1961 IS CONFIRMED IN ALL THE APPEALS. THE GROUNDS OF APPEAL ARE DISMISSED. 7 . BEFORE US, LD A.R. OF THE ASSESSEE HAS FILED A WRITTEN SUBMISSION, WHICH READS AS UNDER: 1. THE ASSESSING OFFICER HAS ISSUED NOTICE U/S 153A/153C OF THE ACT ON 04.02.2015 CALLING FOR RETURN OF INCOME. THE P A G E 5 | 11 ASSESSING OFFICER HAS ISSUED ANOTHER NOTICE U/S 153A OF THE ACT ON 24.08.2016/30.09.2016 CALLING FOR THE RETURN OF INCOME WHEN THE 1 ST NOTICE DATED 04.02.2015 IS IN FORCE. HE SUBMITTED THAT O NCE A NOTICE IS ISSUED BY THE ASSESSING OFFICER, THEN THE SAID NOTICE CANNOT BE CANCELL ED BY ANY AUTHORITY WITHOUT FOLLOWING DUE PROCEDURE OF LAW. THE REVISIONA L POWER IS V ESTED WITH THE PRINCIPAL COMMISSIONER OF INCOME - TAX/COMMISSIONER OF INCOME - TAX UNDER SECTION 263/264 OF THE ACT. NO AUTHORITY BELOW THE RANK OF PRINCIPAL COMMISSIONER OF INCOME - TAX/COMMISSIONER OF INCOME - TAX CAN QUASH, WITHDRAW OR MODIFY THE ORDER, NOTICE, DECISION OF THE ASSESSING OFFICER. 2. THE SECTION 129 OF THE ACT EMPOWERS THE ASSESSING OFFICER TO PROCEED FROM THE STAGE WHERE THE PROCEEDING IS LEFT BY HIS PREDECESSOR . THE ACT NEVER AUTHORIZES THE INCOME - TAX AUTHORITIES UNDER THE ACT TO ISSUE 2 NO NOTICE U/S 153A OF THE ACT CALLING FOR RETURN OF INCOME AFTER ISSUE OF FIRST NOTICE DATED 04.02.2015. THE ASSESSING OFFICER HAS WITHDRAWN THE NOTICE DATED 04.02.2015 ON 22.11. 2016 AND FOR WHICH THE PENALTY IMPOSED FOR THE FAILURE OF ALLEGED NON - COMPLIANCE TO THE SECOND NOTICE U/S 153A DATED 24.08.2 0 16/30.09.2016 IS ILLEGAL, WITHOUT JURISDICTION AND CONTRARY TO THE PROVISIONS OF THE ACT AND NO ACTION ON THE BASIS OF 2 ND NOTICE I S PERMITTED UNDER THE ACT AGAINST THE APPELLANT AND FOR WHICH THE PENALTY ORDER IS LIABLE TO BE QUASHED. 3 . T HE ORDER HAS BEEN PASSED WITHOUT PROVIDING NATURAL JUSTICE TO THE A SSESSEE BEFORE IMPOSING PENALTY WHICH IS P A G E 6 | 11 CONTRARY TO THE PROVISIONS OF THE SECTION 274 OF THE ACT WHEREIN IT HAS BEEN SPECIFICALLY MENTIONED THAT NO ORDER OF IMPOSING PENALTY SHALL BE MADE UNLESS THE A SSESSEE HAS BEEN HEARD OR HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. HAT, THE PENALTY IS TO BE IMPOSED BY FOLLOWING T HE PROCEDURE AS MENTIONED IN THE SECTION 274 WHEREIN THE PENALTY IMPOSABLE UNDER THE CHAPTER XXI STARTS FROM 270 ENDS WITH SECTION 273B AND THE PROCEDURE IS MENTIONED FOR IMPOSING THE PENALTY U/S 274 & 275 OF THE ACT WHEREIN THE PENALTY IMPOSABLE UNDER THE CHAPTER IS TO BE BARRED BY THE LIMITATION ONLY AFTER RECEIVING THE APPEAL AGAINST THE ASSESSMENT ORDER ON THE BASIS OF WHICH 271F HAS BEEN INITIATED BY THE LEARNED ACIT. THE LEARNED ACIT/DCIT NEITHER KEPT THE PENALTY PROCEEDING IN ABEYANCE NOR ALLOWED THE A SSESSEE TO SUBMIT HER REPLY UNDER ANNEXURE - 7 AND THEREBY THE PENALTY SO IMPOSED IS LIABLE TO BE QUASHED BEING CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AS THE ACT SPECIFIES THAT THE A SSESSEE IS TO BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD BEF ORE IMPOSING PENALTY WHEREAS IN THE IMPUGNED CASE EVEN AN OPPORTUNITY OF BEING HEARD HAS NOT BEEN GIVEN TO THE A SSESSEE FOR WHICH THE ORDER OR PENALTY IMPOSED IS LIABLE TO BE QUASHED. 4. T HAT ON BARE PERUSAL OF THE AFORESAID SECTION 271F OF THE ACT , IT IS CLEAR T HAT PENALTY IS TO BE IMPOSED IF THE A SSESSEE FAILS TO FURNISH THE RETURN OF INCOME U/S 139 OF THE ACT. IN THIS CASE, THE A SSESSEE HAS FILED THE RETURN U/S 139(1) OF THE ACT WITHIN THE PERIOD OF LIMITATION AND THERE IS NO FAILURE ON THE PART O F THE A SSESSEE THERE UNDER. FOR FAILURE TO COMPLY TO THE NOTICE U/S 153A OF THE P A G E 7 | 11 ACT , THE PENALTY CANNOT BE IMPOSED U/S 271F OF THE ACT. IN THAT VIEW OF THE MATTER, THE PENALTY NOTICE ISSUED BY THE LEARNED ACIT DATED 30.11.2016/16.12.2016 IS WITHOUT JURISDICTION AND IS ILLEGAL AND FOR WHICH THE PENALTY SO IMPOSED IS LIABLE TO BE QUASHED AND/OR ANNULLED. 8 . ON THE OTHER HAND, LD D.R. SUPPORTED THE ORDERS OF LOWER AUTHORITIES. 9 . WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. WE FIND THAT SECTION 271F OF THE ACT READS AS UNDER: PENALTY FOR FAILURE TO FURNISH RETURN OF INCOME. 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 PROVISIONS 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. 1 0 . THE HONBLE DELHI BENCH IN THE CASE OF R.S.INVESTMENT VS ITO (SUPRA) HAS HELD AS UNDER: 7. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE. 'THE PROVISIONS OF SECTION 1 53C UNDER WHICH THE ASSESSMENT HAS BEEN MADE, PROVIDE IN RESPECT THE ASSESSMENT OF INCOME OF ANY OTHER PERSON IN ADDITION TO THE ASSESSMENT IN THE CASE OF SEARCH OR REQUISITION UNDER SECTION 153A. THE PROVISIONS ITSELF PROVIDES THAT THE ASSESSMENT UNDER THIS SECTION SHALL HE MADE BY THE ASSESSING P A G E 8 | 11 OFFICER OF SUCH PERSON BY ISSUING THE NOTICE AND ON THAT BASIS, THE ASSESSING OFFICER WILL ASSESS OR REASSESS THE TOTAL INCOME OF SUCH PERSON OR SUCH ASSESSMENT YEARS IN THE MANNER PROVIDED IN SECTION 153 A. THUS , THE ASSESSMENT AND REASSESSMENT HAS TO BE MADE IN THE MANNER PROVIDED IN SECTION 153A. SECTION 153A PROVIDES THAT THE ASSESSING OFFICER SHALL ISSUE THE NOTICE REQUIRING TO FURNISH RETURN OF INCOME WITHIN A PERIOD AS SPECIFIED IN THE NOTICE. THE ASSESSEE WAS UNDER THE OBLIGATION TO FILE THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IN A PRESCRIBED FORM AND VERIFIED IN A PRESCRIBED MANNER ALONG WITH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF T HE ACT SHALL, AS FAR AS MAY BE, APPLY, ACCORDINGLY AS IF SUCH RETURN WAS A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139. IN VIEW OF THESE THE PLEADINGS OF THE ASSESSEE THAT THE PROVISIONS OF SECTION 271F COULD NOT BE APPLIED WHERE THE RETURN WAS REQU IRED TO BE FURNISHED UNDER SECTION 153C READ WITH SECTION 153A COULD NOT BE AGREED WITH. ALTHOUGH THERE IS NO MINIMUM TIME REQUIRED TO BE GIVEN IN THE NOTICE TO BE ISSUED UNDER SECTION 153A FOR FILING THE RETURN AND ALSO NO SEPARATE FORM HAS BEEN PRESCRIB ED, HOWEVER, ASSESSEE IS UNDER LEGAL OBLIGATION TO FILE THE RETURN OF INCOME. THE PHRASE HAS BEEN USED 'SO FAR AS MAY BE' IN SECTION 153 A. THESE WORDS 'SO FAR AS MAY BE' HAVE BEEN USED TO RESTRICT. THE APPLICABILITY OF THOSE PROVISIONS WHICH ARE INCONSIS TENT WITH THE PROVISIONS OF SECTION 153A. MEANING THEREBY THAT BY USING WORD 'SO FAR AS MAY BE IN SECTION 153A, THE PROVISIONS AND REQUIREMENT OF SECTION 139 WHICH ARE NOT INCONSISTENT WITH PROVISIONS OF SECTION 153A SHALL BE APPLICABLE AND COMPLIANCE THER EOF SHALL BE AS MANDATORY. THE PROVISIONS IN RESPECT OF THE PENALTY FOR THE VIOLATION OF THE PROVISIONS OF SECTION 139 SHALL BE VERY MUCH APPLICABLE WHENEVER THERE IS A VIOLATION OF SECTION 139 READ WITH SECTION 153 A IN RESPECT OF THE FILING THE RETURN O F INCOME. SINCE WE ARE HOLDING THAT THE PROVISIONS OF S. 271F ARE APPLICABLE WHEN THERE IS A VIOLATION OR NON - FILING THE RETURN WHEN NOTICES UNDER S. 153 R/W S. 153A ARE ISSUED, THEREFORE, THE CASE LAWS RELIED UPON BY THE LEARNED AUTHORISED REPRESENTATIVE WITH REGARD TO PROPOSITION THAT PENALTY PROVISIONS SHOULD BE CONSTRUED STRICTLY HAS NO RELEVANCE ON THE ISSUE. FURTHER, THE LEARNED AUTHORISED REPRESENTATIVE'S PLEADINGS THAT THE PENALTY FOR NOT FILING THE ORIGINAL RETURN OF INCOME CAN ALSO BE NOT LEVIED D UE TO BEYOND THE REASONABLE TIME. IN THIS REGARD, WE ARE OF THE VIEW THAT REVENUE HAD NOT ESTABLISHED BEYOND DOUBT THAT RETURNS WHEREVER ASSESSEE WAS REQUIRED TO BE FILED HAD NOT BEEN FILED BY THE ASSESSEE. AS WE HAVE SEEN THAT ASSESSEE WAS NOT HAVING TAXA BLE INCOME AT LEAST IN FOUR ASSESSMENT YEARS. FURTHER, THE ASSESSEE HAS ALSO FILED THE AFFIDAVIT STATING THAT ORIGINAL RETURN OF INCOME WERE FILED. REVENUE HAD NOT DISPROVED/DISLODGED THE CONTENTS OF AFFIDAVIT. THEREFORE, AFTER CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND VARIOUS P A G E 9 | 11 PLEADINGS MADE BEFORE US, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE DOES NOT DESERVE TO BE VISITED PENALTY UNDER S. 271F OF THE IT ACT. IN VIEW OF THESE FACTS, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW. 1 1 . THUS, THE DELHI TRIBUNAL HAS HELD THAT WHEN ORIGINAL RETURN OF INCOME WAS FILED WITHIN THE ASSESSMENT YEAR, THE ASSESSEE CANNOT BE VISITED WITH PENALTY U/S.271F OF THE ACT. 1 2 . IN THE INSTANT CASE FOR ALL THE ASSESSMENT YEARS UNDER APPEAL, THE RETURN OF I NCOME WAS FILED ORIGINALLY WITHIN THE RELEVANT ASSESSMENT YEARS AS UNDER: ASST. YEAR DATE OF FILING OF ORIGINAL RETURN 2008 - 09 28.7.2008 2009 - 10 3 1 .7.2009 2010 - 11 30.7.2010 2011 - 12 29 .7.2011 2012 - 13 27 . 6 .201 3 2013 - 14 27 . 12 .2013 THE FILING OF RETURN IS EVIDENCED FROM ACKNOWLEDGEMENT OF RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008 - 09 AND PARA 1 OF THE ORDER OF ASSESSMENT PASSED U/S.153A READ WITH SECTION 144 OF THE ACT FOR THE ASSESSMENT YEARS 2009 - 2010 TO 2013 - 14. 1 3 . THEREFORE, IN OUR CONSIDERED VIEW, LEVY OF PENALTY U/S.271F OF THE ACT IS UNSUSTAINABLE FOR THE ASSESSMENT YEARS 2008 - 09 TO 2011 - 12 AND FOR THE ASSESSMENT YEAR 2013 - 14 . HENCE, WE DELETE PENALTY LEVIED U/S.271F OF THE ACT FOR THE ASSESSMENT YEARS 2008 - 09 TO 2011 - 12 AND 2013 - 14. HOWEVER, WE FIND THE ASSESSEE P A G E 10 | 11 HAS NOT FILED RETURN OF INCOME WITHIN ASSESSMENT YEAR 2012 - 13 . THEREFORE, WE SUSTAIN THE PENALTY U/S.271F OF THE ACT FOR THE ASSESSMENT YEAR 2012 - 13. 14. BEFORE PARTING WITH THIS ORDER, WE WOULD LIKE TO STATE THAT LD A.R. OF THE ASSESSEE IN THE SUBMISSION FILED HAS STATED THAT NOTICE UNDER SECTION 153A/153C OF THE ACT WAS ISSUED ON 4.2.2015 AND AFTER THAT ANOTHER NOTICE UNDER SECTION 153A/153C OF THE ACT WAS ISSUED ON 24.8.2016 THEREBY CANCELLING THE EARLIER NOTICE UNDER SECTION 153A/153C OF THE ACT FOR WHICH THE POWER IS VESTED WITH THE PR. COMMISSIONER OF INCOME TAX/COMMISSIONER OF INCOME TAX AND NOT ON THE ASSESSING OFFICER. WE WOULD LIKE TO OBSERVE THAT LD A.R. OF THE ASSESSEE HAS NOT CITED ANY LEGAL DECISION I N HIS FAVOUR BEFORE US. HENCE, WE DO NOT ACCEPT THE SAME AND, ACCORDINGLY, THIS SUBMISSION OF THE ASSESSEE IS REJECTED. FURTHER, LD A.R. HAS SUBMITTED THAT HE WAS NOT ALLOWED OPPORTUNITY OF HEARING BEFORE PASSING OF THE PENALTY ORDER. WE FIND THAT IN TH E SUBMISSION FILED, LD A.R. HAS NOT STATED HOW OPPORTUNITY OF HEARING WAS NOT ALLOWED TO HIM BY BRINGING ANY MATERIAL ON RECORD. THEREFORE, THIS SUBMISSION OF LD A.R. IS ALSO REJECTED. P A G E 11 | 11 1 5 . IN THE RESULT, APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2008 - 09 TO 2011 - 12 AND FOR ASSESSMENT YEAR 2013 - 14 ARE ALLOWED AND APPEAL FOR THE ASSESSMENT YEAR 2012 - 13 IS DISMISSED. ORDER PRONOUNCED ON 26 /0 9 /2018. SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 26 /0 9 /2018 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR.PVT SECRETARY ITAT, CUTTACK 1. THE APPELLANT : SRI SEEMA PATNAIK , C/ O . SHANTI MEMORIAL HOSPITAL COMPLEX, UDIT NAGAR, ROURKELA. 2. THE RESPONDENT. ACIT, CENTRAL CIRCLE, SAMBALPUR 3. THE CIT(A) - 2,BHUBANESWAR 4. PR.CIT - 2, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//