C.L. Sethi, J.M. - (1.) THIS is an appeal filed by the assessee against the order dt. 27th June, 2003 passed by the CIT(A) in the matter of an order of penalty amounting to Rs. 5,000 imposed by the AO under Section 271F of the IT Act, 1961 (hereinafter referred to as Act) for the asst, yr. 2000-01.
(2.) Material facts, in brief, related to the issue involved in this appeal are as under : The AO noted that the assessee filed return of income on 20th March, 2002 for the asst. yr. 2000-01 showing total income at Rs. 89,980. The due date within the meaning of Section 139(1) was 31st Aug., 2000. The asst. yr. 2000-01 had ended on 31st March, 2001. The last date for filing return of income was 31st March, 2001 as contemplated under Section 271F of the Act. The assessee did not furnish the return of income before the end of the relevant assessment year. Penalty proceedings under Section 271F were initiated by the Act and a show-cause notice was issued to the assessee as to why penalty as provided under Section 271F should not be imposed. In response to the show-cause notice issued under Section 271F the assessee submitted written explanation stating that the entire tax liability was covered by TDS amount and ultimately there was a refund due to the assessee. The AO had referred to the provisions of Section 139(1)(a) of the Act and formed an opinion that the explanation as submitted by the assessee that the entire tax liability was covered by TDS is not acceptable and it was a deliberate failure on the part of the assessee to file the return within the relevant assessment year i.e., 31st March, 2001. He, therefore, found the present case fit for imposition of penalty under Section 271F of the Act. Thus, a penalty of Rs. 5,000 as provided under Section 271F was imposed by the AO. Being aggrieved, the assessee went in first appeal before the CIT(A), who dismissed the assessee's appeal by observing as under : "I have considered the matter carefully. The judgment of Hon'ble Supreme Court in the case of Hindustan Steel quoted by the appellant was in connection with the sale-tax law and the penalty in that case had been imposed for failing to register as a dealer and thus evading sales-tax. The penalty in that case was not for delay in filing of return of income, The case is, therefore, distinguishable. Mens rea, is not an essential ingredient of default in relation to filing of return of income as has been held by the Hon'ble Supreme Court in case of Gujarat Travancore Agency v. CIT (1989) 177 ITR 455 (SC). Only default is required to be proved by the Department and burden is on the assessee to prove if there was any reasonable cause for default. The ground for delay given by the appellant, that is, non-receipt of confirmation of transactions is not supported by any evidence. It is also not a satisfactory ground as the assessee could have filed return of income based on books of account maintained by her and, in case of any discrepancy, could have filed revised return later, The submission of the learned Authorised Representative that the penalty should be imposed as per law applicable on the date of default on 31st March, 2001 is also not acceptable in view of the judgment of Hon'ble Supreme Court in case of Smt. Maya Rani Punj v. CIT (1986) 157 ITR 330 (SC). The Hon'ble Supreme Court has held in the said case that penalty would be imposable on the basis of law applicable at the time when the AO decided to initiate penalty proceedings. In this case, both the filing of return of income and the action of the AO initiating penalty have occurred after the amended provision became effective from 1st June, 2001. In the facts and circumstances of the case, penalty of Rs. 5,000 imposed by the AO as per the amended law is found to be in order and the same is confirmed." Still aggrieved, the assessee has preferred this appeal before the Tribunal.
(3.) THE learned counsel appearing for the assessee has submitted that there was the delay in submission of return as all the confirmations in respect of the transactions could not be obtained in time to be filed along with the return. It was furthermore submitted that the entire liability of tax was covered by TDS and ultimately there was a refund due to the assessee and in such circumstances the assessee would have gained nothing in not filing the return in time. He further contended that the delay in submission of the return was thus due to reasonable causes. He would further contended that there was no deliberate defiance of law. A reliance was placed on the decision of Hon'ble Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa (1972) 83 ITR 26 (SC).;