Shri Rajesh Ajjavara , Bangalore V. Income Tax Officer Ward-5(3)(1), Bangalore

ITA 357/BANG/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0879 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-12-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 27-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI
• Assessee Lawyers: A RAVISH RAO
• Keywords: Rectification of order; Salary income; Bonafide belief; Reasonable cause; TDS; Set aside
• Section: 244A; 142(1); 271E; 250; 207; 139(1); 139(4); 148; 154; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: BENGALURU BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ITA NOS.2604, 2605, 2606/BANG/2018 (ASSESSMENT YEARS: 2012-13, 2014-15 & 2015-16) & ITA NO.357/BANG/2019 (ASSESSMENT YEAR: 2013-14) SHRI RAJESH AJJAVARA, NO.65, 3 RD MAIN, PRASHANTH NAGAR, BENGALURU 560 079. [PAN: AGCPA 0752H] VS. THE INCOME TAX OFFICER (TDS), WARD-5(3)(1), BENGALURU. ( /APPELLANT ) ( /RESPONDENT ) / APPELLANT BY : SHRI A.RAVISH RAO, C.A / RESPONDENT BY : SMT. R. PREMI, JCIT / DATE OF HEARING : 04.12.2019 /DATE OF PRONOUNCEMENT : 20.12.2019 O R D E R PER D.S. SUNDER SINGH, A.M: ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)- 5, BENGALURU (HEREAFTER REFERRED AS CIT(A)) DATED 01.05.2018, 19.04.2018 & 31.01.2019 FOR THE ASSESSMENT YEARS (AYS) 2012-13, 2014-15, 20 15-16 & 2013-14 RESPECTIVELY. ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 2 -: 2. THESE FOUR APPEALS ARE FILED BY THE ASSESSEE . SINCE, THE ISSUES INVOLVED IN ALL THE APPEALS ARE IDENTICAL, THESE AP PEALS ARE CLUBBED, HEARD TOGETHER AND DISPOSED OF BY A COMMON ORDER AS UNDER : ITA NOS.2604, 2605 & 2606/BANG/2018 FOR ASSESSMENT YEARS 2012-13, 2014-15 & 2015-16: 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E DID NOT FILE RETURN OF INCOME, THOUGH HE WAS HAVING TAXABLE INCOME FOR THE RELEVANT ASSESSMENT YEARS UNDER CONSIDERATION, THEREFORE, THE ASSESSING OFFICER (AO) HAS ISSUED THE NOTICE UNDER SECTION 271 OF THE INCOME TAX ACT, 1961 ('THE ACT'). THE AO ISSUED THE SHOW CAUSE NOTICE DATED 16.10 2017 FO R THE AYS. 2012-13 TO 2015-16 DIRECTING THE ASSESSEE TO EXPLAIN AS TO WHY THE PENALTY SHOULD NOT BE LEVIED FOR NON FURNISHING OF THE RETURNS AS REQU IRED UNDER SECTION 139(1) OF THE ACT. IN RESPONSE TO WHICH THE ASSESSEE FILED HIS REPLY STATING THAT HE WAS SALARIED EMPLOYEE WORKING IN TCS. DURING THE R ELEVANT PREVIOUS YEARS, HE WAS ON ASSIGNMENT OUTSIDE THE HEADQUARTERS AT B ANGALORE INCLUDING FOREIGN ASSIGNMENT WITH PERIODICAL INTERVALS WHICH HAS STRETCHED FOR MONTHS TOGETHER. THEREFORE THE ASSESSEE SUBMITTED THAT HE COULD NOT FOCUS HIMSELF ON HIS LEGAL OBJECTS FOR FILING HIS RETURNS OF INCO ME WHICH RESULTED IN FILING THE RETURNS BELATEDLY. THE ASSESSEE FURTHER SUBMIT TED THAT HE IS HAVING ONLY INCOME FROM SALARY AND THE TAX WAS DEDUCTED AT SOUR CE BY WAY OF TAX DEDUCTION AT SOURCE(TDS) AND ALWAYS THE RETURNS RES ULTED IN REFUND HENCE, SUBMITTED THAT THERE WAS NO LOSS TO THE REVENUE. TH E ASSESSEE REQUESTED TO TREAT THE RETURN FILED UNDER SECTION 139(4) OF T HE ACT AS RETURN UNDER ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 3 -: SECTION 139(1) AND TAKE LENIENT VIEW FOR THE PURPOS E OF PENALTY AND REQUESTED TO DROP THE PENALTY PROCEEDINGS. THE ASSE SSEE ALSO RELIED ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F TRUSTEES OF TULSIDAS GOPALJI CHARITABLE AND CHALESWAR TEMPLE TRUST VS. C IT [1994] 207 ITR 368 (BOM), WHEREIN IT WAS HELD THAT THE SUB S. (1) & (4) TO S ECTION 139 OF THE ACT HAVE TO BE RED TOGETHER AND ON SUCH READING, THE IN EVITABLE CONCLUSION IS THAT THE RETURN MADE WITHIN THE TIME SPECIFIED IN S UB SECTION (4) OF THE ACT HAS TO BE CONSIDERED AS HAVING MADE WITHIN THE TIME PRESCRIBED IN SUB SECTION (1) & SUB SECTION (2) TO SECTION 139 OF THE ACT. THUS, SUBMITTED THAT THERE IS NO DEFAULT AND REQUESTED TO DROP THE PENAL TY PROCEEDINGS UNDER SECTION 271F OF THE ACT. NOT BEING CONVINCED WITH E XPLANATION OF THE ASSESSEE, THE AO LEVIED THE PENALTY OF RS.5,000/- E ACH FOR THE ASSESSMENT YEARS 2012-13 TO 2015-16. 4. AGAINST THE ORDER OF THE AO THE ASSESSEE FILED A PPEAL BEFORE THE LD. CIT(A) AND REITERATED THE SUBMISSIONS WHICH WERE M ADE BEFORE THE AO. THE LD. CIT(A) CONSIDERED THE SUBMISSIONS OF THE AS SESSEE AND ALLOWED THE APPEAL. WHILE ALLOWING APPEAL, THE LD.CIT(A) RE LIED ON THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF TRUSTEES OF TULSIDAS GOPALJI CHARITABLE AND CHALESWAR TEMPLE TRUST VS. CIT (SUPR A). FOR THE SAKE OF CLARITY AND CONVENIENCE, WE EXTRACT THE RELEVANT PA RT OF THE ORDER OF THE LD. CIT(A), WHICH READS AS UNDER: I HAVE CONSIDERED THE ABOVE GROUNDS OF APPEAL, STA TEMENT OF 'FACTS AND WRITTEN SUMISSIONS FILED BY THE APPELLANT AND ALSO PERUSED THE PENALTY ORDERS. PENALTY U/S 271F LEVIED BY THE ASSESSING OF FICER FOR NON FILING OF RETURN OF INCOME WITHIN DUE DATES SPECIFIED U/S.139 ( 1) OF THE IT ACT. THE ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 4 -: APPELLANT SUBMITTED THAT THE RETURNS WERE FILED WIT HIN THE TIME ALLOWED U/S.139(4) OF THE INCOME TAX ACT 1961 AND HENCE THE RE WAS DELAY IN FILING RETURN OF INCOME FOR WHICH THE APPELLANT RENDERED T O LIABLE TO INTEREST. FURTHER SUBMITTED THAT THERE WAS NO DELIBERATE OR W ILLFUL OMISSION ON THE PART OF THE APPELLANT TO BE SUBJECTED TO PENALTY U/ S.271 F OF THE ACT. THE PROVISIONS OF SEC.271 F PROVIDES THAT IF A PERSON W HO IS REQUIRE TO FURNISH A RETURN OF HIS INCOME AS REQUIRED UNDER SUB-SEC.(1) OF SEC.139 OR BY 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 RS.500 0/-. WHEREAS THE APPELLANT HAS FILED HIS RETURNS OF INCOME U/S.139(4 ) TOR A.Y.2012-13 ON 29/03/2014 AND FOR A.Y.2014-15 ON 27.03.2016 DECLAR ING TOTAL INCOMES OF RS.5,50,074/- AND RS.6,41,498/- RESPECTIVELY: FURTH ER, THE APPELLANT RELIED ON THE HON'BLE BOMBAY HIGH COURT TRUSTEES OF TULSID AS GOPALJI CHARITABLE AND CHALESHWAR TEMPLE TRUST VS. CIT WHEREIN IT WAS HELD THAT ON A CAREFUL READING OF SECTION 139 OF THE ACT, WE ARE O F THE CLEAR OPINION THAT SUB-SECTIONS (1) AND (4) OF SECTION 139 HAVE TO BE READ TOGETHER AND ON SUCH READING, THE INEVITABLE CONCLUSION IS THAT A R ETURN MADE WITHIN THE TIME SPECIFIED IN SUB-SECTION (4) HAS TO BE CONSIDERED AS HAVING BEEN MADE WITHIN THE TIME PRESCRIBED IN SUB-SECTION (1) OR SUB-SECTION (2) OF SEC.139 OF THE ACT. CIT VS. KULU VALLEY TRANSPORT C O. (P) LTD. (1970) 77 ITR 518 (SC) FOLLOWED. IN VIEW OF THE FACTUAL POSIT ION AND LEGAL MATRIX OF THE CASES UNDER CONSIDERATION THE PENALTIES U/S.271 F OF THE ACT LEVIED BY THE ASSESSING OFFICER IS NOT JUSTIFIED. THEREFORE, THE GROUNDS OF APPEALS ARE HEREBY ALLOWED. 5. SUBSEQUENTLY, THE AO FILED A RECTIFICATION PETIT ION UNDER SECTION 154 OF THE ACT AND THE LD. CIT(A) PASSED THE ORDER UNDE R SECTION 154 CONFIRMING THE PENALTY LEVIED BY THE AO. WE ALSO E XTRACT THE RELEVANT PART OF THE ORDER OF THE LD. CIT(A), WHICH READS AS UNDE R: 3.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE APPELLANT AND ALSO PERUSED THE CASE RELIED UPON BY HIS AUTHOR ISED REPRESENTATIVE. IN RESPECT TO THE PROVISIONS OF SECTION 271 F, THE ASSESSING OFFICER POINTS OUT THAT THE APPELLANT HAS FAILED TO GIVE SATISFACT ORY EXPLANATION FOR DELAY IN FILING OF RETURN OF INCOME AND STATES THAT AS PER THE PROVISIONS OF SECTION 271 F, IF A PERSON WHO IS REQUIRED TO FURNISH HIS R ETURN OF INCOME AS REQUIRED UNDER SUB SECTION (1) OF 139 OR BY PROVISO TO THAT SUB-SECTION, FAILS TO FURNISH SUCH RETURN BEFORE THE END OF THE RELEVANT ASSESSMENT YEAR IS LIABLE TO PAY PENALTY OF RS.5000/-. BUT, I HAVE HELD THAT ON CAREFUL READING OF SECTION 139 OF THE ACT, WE ARE OF THE CL EAR OPINION THAT SUB- SECTION (1) AND (4) OF SECTION 139 HAVE TO BE READ TOGETHER AND ON SUCH A READING, THE INEVITABLE CONCLUSION IS THAT A RETURN MADE WITHIN THE TIME SPECIFIED IN SUB SECTION (4) HAS TO BE CONSIDERED A S HAVING BEEN MADE WITHIN THE TIME PRESCRIBED AS SUB SECTION (1) OR (2 ) OF SECTION 139 OF THE ACT RELYING UPON THE HON'BLE BOMBAY HIGH COURT TRUS TEES OF TULSIDAS GOPALJI CHARITABLE & CHALESWAR TEMPLE TRUST VS. CIT . JUDGEMENT. 3.2 IN THIS CONTEXT, IT IS SUBMITTED BY THE ASSESSI NG OFFICER THAT THE PROVISIONS OF SECTION 271 F OF THE ACT NOWHERE MENT IONS THAT FOR LEVYING ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 5 -: PENALTY UNDER THIS SECTION, THERE SHOULD BE WILLFUL AND DELIBERATE OMISSIONS ON THE PART OF THE ASSESSEE. BESIDES, FILING OF RET URN AS PER SECTION 139(4) WOULD NOT DILUTE INFRACTION OF NOT FURNISHING THE R ETURN OF INCOME BEFORE THE END OF THE RELEVANT ASSESSMENT YEAR AS PER THE RATI O LAID DOWN BY THE HON'BLE SUPREME COURT DECISION IN THE CASE OF PRAKA SH NATH KHANNA VS.CIT(2004) 135 TAXMAN 327 (SC). RESPECTFULLY FOLL OWING HON'BLE SUPREME COURT ORDER, THE APPEALS FILED BY THE APPEL LANT IS HEREBY TREATED AS DISMISSED AND THE APPELLATE ORDERS ARE AMENDED T O THIS EFFECT. THE REVIEW PETITIONS FILED FOR RECTIFICATION UNDER SECT ION 154 OF THE INCOME-TAX ACT, 1961 STANDS DISPOSED OFF. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. IN THE INSTANT CASE, THE ASSESSE E CHALLENGED THE ORDER IN GROUND NO.5 WITH REGARD TO VALIDITY OF ORDER U/S 15 4. DURING THE APPEAL HEARING, THE LD. AR VEHEMENTLY PRESSED THIS GROUND STATING THAT ONCE THE LD.CIT(A) HAS TAKEN CONSCIOUS DECISION RELYING ON T HE DECISION OF HONBLE BOMBAY HIGH COURT IN FAVOUR OF THE ASSESSEE AND THE N CHANGED HIS OPINION IN RECTIFICATION PROCEEDINGS WHICH IS NOT PERMISSIB LE UNDER SECTION 154 OF THE ACT. ON THE OTHER HAND, THE LD.DR SUPPORTED THE ORDER OF THE LD.CIT(A). WE CONSIDERED THE RIVALS SUBMISSIONS AND FOUND FROM THE ORDER OF THE LD. CIT(A) THAT THE LD. CIT(A) HAS TAKEN A DECISION AFTER CONSIDERING THE LAW LAID DOWN BY THE HONORABLE BOMBAY HIGH COURT IN THE CASE OF TRUSTEES OF TULSIDAS GOPALJI CHARITABLE AND CHALESWAR TEMPLE TRUST VS. CIT (SUPRA), WHEREIN THE HONBLE HIGH COURT OF BOMBAY HELD THAT SUB SECTION (1) & (4) OF SECTION 139 OF THE ACT HAVE TO BE READ TOGETHER AND ON SUCH READING THE INEVITABLE CONCLUSION IS THAT THE RETURN MADE WITHI N THE TIME SPECIFIED IN SUB SECTION (4) OF THE ACT HAS TO BE CONSIDERED AS HAVI NG BEEN MADE WITHIN THE TIME PRESCRIBED TIME UNDER SUB SECTION (1)/(2) OF S ECTION 139 OF THE ACT. ON RECTIFICATION PETITION FILED BY THE AO, THE LD. CIT (A) TAKEN A DIFFERENT VIEW ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 6 -: AND HELD THAT RETURN OF INCOME FILED UNDER SECTION 139(4) OF THE ACT WOULD NOT DILUTE NON FURNISHING THE RETURN OF INCOME BEFO RE THE END OF RELEVANT ASSESSMENT YEAR AS REQUIRED U/S 139(1) OF THE ACT. THE LD.CIT(A) IN THE RECTIFICATION ORDER RELIED ON THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF PRAKASH NATH KHANNA VS. CIT [2004] 135 TAXMAN 327 (SC) . FROM THE PLAIN READING OF THE ORDER U/S. 250 OF THE ACT, DATED 19.04.2018 AND 16.08.2019, IT IS CLEAR THAT THE LD. CIT(A) HAS TAKEN TWO DIFFERENT VIEWS, PLACING RELIANCE ON THE DECISION OF HONBLE HIGH COURT OF BOMBAY ALLOWED THE APPEAL OF THE ASSESSEE AND RE-VI SITING S. 271F OF THE ACT AND CONSIDERING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF PRAKASH NATH KHANNA VS. CIT (SUPRA) DECIDED THE APPEAL AGAINST THE ASSESSEE. THE TWO DECISIONS APPARENTLY CONTRADICTOR Y FOLLOWING THE DIFFERENT JUDGEMENTS OF HONOURABLE BOMBAY HIGH COURT AND THE SUPREME COURT WHICH ARE NOT ON THE SAME FACTS. THEREFORE, IT IS C LEAR FROM THE ABOVE FACTS THAT THERE ARE TWO VIEWS ARE POSSIBLE ON THE ISSUE ONE IS IN FAVOUR OF THE ASSESSEE AND THE OTHER ONE IS AGAINST THE ASSESSEE. WHEN THE TWO VIEWS ARE POSSIBLE ON THE SAME ISSUE AND THE ISSUE WHICH NEEDS TO BE DECIDED AFTER DEBATE AND DELIBERATIONS IT IS NOT PERMITTED TO MAKE THE RECTIFICATION SECTION 154 OF THE ACT. IT IS SETTLED ISSUE THAT UN DER SECTION 154 OF THE ACT, THE AUTHORITIES ARE PERMITTED TO RECTIFY THE MISTAK E WHICH IS APPARENT FROM THE RECORD AND IN THE INSTANT CASE, THERE WAS NO M ISTAKE WHICH IS APPARENT FROM THE RECORD AND THE ISSUE REQUIRED TO BE DISCUS SED DELIBERATELY AND CONSIDER VARIOUS CASE LAWS. THEREFORE, WE HOLD THAT THE ORDER PASSED BY LD. ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 7 -: CIT(A) U/S 154 IS BAD IN LAW AND UNSUSTAINABLE. ACC ORDINGLY, WE THE CANCEL THE ORDER PASSED UNDER SECTION 154 OF THE ACT AND R ESTORE THE ORIGINAL ORDER DATED 19-4-2018 AND ALLOW APPEAL OF THE ASSESSEE. 7. IN THE RESULT, APPEALS FILED BY THE ASSESSEE IN ITA NO.2604, 2605 & 2606/BANG/2018 FOR ASSESSMENT YEARS 2012-13, 2014-1 5 & 2015-16 ARE ALLOWED . ITA NO.357/BANG/2019 FOR ASSESSMENT YEAR 2013-14: 8. IN THIS CASE THE ASSESSEE DID NOT FILE THE RE TURN OF INCOME WITHIN THE DUE DATE ALLOWED UNDER SECTION 139(1) OF THE ACT. THEREFORE, THE AO HAD ISSUED THE NOTICE UNDER SECTION 271F OF THE ACT, V IDE SHOW CAUSE NOTICE DATED 16.10.2017. IN RESPONSE TO WHICH THE ASSESSEE FILED EXPLANATION STATING THAT HE COULD NOT FILE THE RETURN OF INCOME BECAUSE OF PREOCCUPATION OF THE EMPLOYMENT. THE AO DID NOT CONVINCE WITH THE EXPLANATION OF THE ASSESSEE HENCE, LEVIED PENALTY OF RS.5,000/- UNDER SECTION 271F OF THE ACT. THE ASSESSEE WENT ON APPEAL BEFORE THE LD. CIT(A) A ND THE LD. CIT(A) CONFIRMED THE PENALTY. AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE THIS TRIBUNAL. 9. DURING THE APPEAL HEARING, THE LD.AR REITERATED THE SUBMISSION MADE BEFORE THE AO WHICH WAS DISCUSSED IN ITA NOS. 2604, 2605 & 2606/BANG/2018 FOR ASSESSMENT YEARS 2012-13, 2014-1 5 & 2015-16 OF THIS ORDER AND REQUESTED TO DROP THE PENALTY. LD.AR FURTHER SUBMI TTED THAT THE LD. CIT(A) RELIED ON THE PRAKASH NATH KHANNA VS. CIT (SUPRA), THE FACTS OF ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 8 -: THE CASE LAW RELIED UPON BY THE LD. CIT(A) ARE DIST INGUISHABLE AND NOT APPLICABLE TO THE ASSESSEES CASE. CALLING OUR ATTE NTION TO THE DECISION OF HONBLE APEX COURT IN THE CASE OF PRAKASH NATH KHANNA VS. CIT (SUPRA), THE LD. AR SUBMITTED THAT IN THE CASE OF PRAKASH NATH KHANNA THE ISSUE INVOLVED WAS RELATING TO THE PROSECUTION AND NOT TH E LEVY OF PENALTY U/S 271F. THEREFORE, ARGUED THAT THE DECISION OF HONBL E SUPREME COURT HAS NO APPLICATION IN THE ASSESSEES CASE. THE AR SUBMIT TED THAT THE ASSESSEE WAS ENGAGED IN THE EMPLOYMENT WHICH DID NOT PERMIT HIM TO SPARE TIME FOR FILING RETURN OF INCOME. HOWEVER HE SUBMITTED THAT HE FILED THE RETURN OF INCOME WITHIN THE TIME LIMIT ALLOWED UNDER SECTION 139(4) OF THE ACT,HENCE, REQUESTED TO CANCEL THE PENALTY AND ALLOW THE APPEA L OF THE ASSESSEE. 10. ON THE OTHER HAND, THE LD. DR ARGUED THAT THE A SSESSEE IS HABITUATE DEFAULTER AND NOT FILING RETURNS OF INCOME WITHIN THE TIME ALLOWED U/S 139(1) OF THE ACT, THEREFORE, ARGUED THAT THERE IS NO CASE FOR TAKING A LENIENCY IN THE CASE OF ASSESSEE, HENCE, ARGUED THAT IT IS A FIT CA SE FOR LEVY OF PENALTY AND SUBMITTED THAT THERE IS NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) THUS, REQUESTED TO UPHOLD THE ORDER OF LD. CIT(A) A ND DISMISS THE APPEAL OF THE ASSESSEE. 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL PLACED ON RECORD. IN THE INSTANT CASE, THE ASSESSEE IS A SALARIED EMPLOYEE AND WORKING WITH THE TCS COMPANY. THOUGH THE ASSESS EE IS VERY BUSY IN HIS EMPLOYMENT, IT IS OBLIGATION OF THE ASSESSEE TO COMPLY WITH THE STATUTORY ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 9 -: REQUIREMENTS AND TO ABIDE BY THE LAWS OF THE LAND. BEING AN EDUCATED ASSESSEE HE SHOULD NOT BE VERY CASUAL TOWARDS COMPL IANCE OF STATUTORY REQUIREMENTS. THE WAY IN WHICH THE ASSESSEE FILED T HE RETURNS OF INCOME FOR THE IMPUGNED YEARS, SHOWS HIS CASUALNESS IN CO MPLYING THE STATUTORY REQUIREMENTS WHICH CANNOT BE APPRECIATED. HOWEVER, THE ASSESSEE HAS FILED THE RETURN OF INCOME WITHIN THE TIME ALLOWED U/S. 139(4) OF THE ACT. THE AO ALSO ISSUED SHOW CAUSE NOTICE ON 16.10.2017 AFTE R FILING THE RETURN OF INCOME. THE ASSESSEE FILED THE RETURN OF INCOME U/ S. 139(4) OF THE ACT BEFORE THE DEPARTMENT HAS NOTICED THAT THE ASSESSEE DID NOT FILE THE RETURN OF INCOME. BEFORE THE FILING OF THE RETURN OF INCO ME, THE DEPARTMENT HAS NEITHER ISSUED THE NOTICE U/S. 142(1) OF THE ACT NO R REOPENED THE ASSESSMENT BY ISSUING OF NOTICE U/S. 148 OF THE ACT . THE ASSESSEE HAS FILED RETURN OF INCOME VOLUNTARILY WITHOUT ANY ENQUIRY OR VERIFICATION FROM THE DEPARTMENT AND EXPLAINED THAT HE IS HAVING ONLY SA LARY INCOME AND NO OTHER INCOME AND THE TAX WAS DEDUCTED AT SOURCE FRO M THE SALARY INCOME. ALWAYS THE INCOME TAX RETURNS RESULTED IN REFUND BU T NOT THE DEMAND. BY FILING THE RETURN OF INCOME BELATEDLY THERE WAS NO LOSS TO REVENUE BUT THERE WAS A LOSS TO THE ASSESSEE AND THE ASSESSEE WAS LOS ING THE INTEREST TO BE PAID U/S. 244A OF THE ACT. FURTHER, IN THE EARLIER AYS, THE LD. CIT(A) BY AN ORDER DATED 19.04.2018 CANCELLED THE PENALTY FOLLOW ING THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF TRUSTEES OF TULSIDAS GOPALJI CHARITABLE AND CHALESWAR TEMPLE TRUST VS. CIT (SUPRA), WHEREIN THE HONBLE HIGH COURT OF BOMBAY HELD THAT THE COMBINED READING OF S. 139(1) ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 10 -: & 139(4) OF THE ACT, THE CONCLUSION TO BE DRAWN IS RETURN MADE WITHIN THE TIME SPECIFIED IN SUB S. (4) OF THE ACT HAS TO BE C ONSIDERED TO HAVE BEEN MADE WITHIN THE TIME PRESCRIBED SUB S. (1) OF 139 O F THE ACT. THE LD. CIT(A) RELIED ON THE DECISION OF PRAKASH NATH KHANNA VS. CIT (SUPRA), WHICH IS RELATED TO THE CASE OF THE PROSECUTION AND NOT THE PENALTY U/S 271E OF THE ACT. THE DEPARTMENT HAS NOT MADE OUT THE CASE THAT THE ASSESSEE REQUIRED TO PAY TAX WHICH REMAINED UNPAID. THE INCOME TAX R ETURN WAS REFUND RETURN AND THE ORDER OF HONBLE ITAT, KOLKATA IN THE CASE OF MRS. MANJU KATARUKA VS. ITO IN ITA NO.1955/KOL/2003 DATED 7.04.2004, HE LD THAT WHEN THERE WAS A REFUND DUE, NON FILING OF RETURN OF INCOME WITHIN SPECIFIED TIME U/S. 139(1) OF THE ACT HAS TO BE CONSIDERED AS A BONAFIDE BELIE F AND THE SAID BONAFIDE BELIEF IS TO BE TREATED AS REASONABLE CAUSE FOR NON FURNISHING THE RETURN BEFORE THE END OF THE ASSESSMENT YEAR. CONSIDERING THE ALL THE FACTS OF THE CASE THAT THE ASSESSEE HAS FILED THE RETURN OF INCO ME WITHIN TIME ALLOWED U/S. 139(4) OF THE ACT, THE RETURN BEING REFUND RET URN, THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF TRUSTEES OF TULSIDAS GOPALJI CHARITABLE AND CHALESWAR TEMPLE TRUST VS. CIT (SUPRA) AND THE DECISION OF ITAT, KOLKATA (SUPRA), WE HOLD THAT THERE IS NO CASE FOR LEVY OF PENALTY U/S. 271F OF THE ACT. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DELETE THE PENALTY LEVIED U/S. 271F OF THE ACT. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.357/BANG/2019 FOR ASSESSMENT YEAR 2013-14 IS ALL OWED. ITA NOS.2604 TO 2606/BANG/2018 & ITA NO.357/BANG/2019 :- 11 -: 13. IN THE RESULT, ALL THE FOUR APPEALS FILED BY TH E ASSESSEE FOR THE AYS. 2012-13 TO 2015-16 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DECEMBER, 2019. SD/- SD/- (N.V. VASUDEVAN) (D.S. SUNDER SINGH) VICE PRESIDENT ACCOUNTANT MEMBER BENGALURU, DATED: 20.12.2019 EDN COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (A) 4. PR. CIT 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL BANGALORE