Decided on August 23,1994



H.C. Shrivastava, Accountant Member - (1.) AS both the appeals concern the same assessee and involve similar points, they are being disposed of together for the sake of convenience.
(2.) Though the notice of hearing was served on the assessee none attended on her behalf. The facts of the case are as below: (1) The returns of income were due to be filed for the years concerned by 31-7-1984 and 31-7-1985 respectively Under Section 139(1) of the Act. (2) The returns of income could also be filed Under Section 139(4) of the Act till 31-3-1987 and 31-3-1988 respectively for the two years. (3) A search and seizure proceeding was conducted at the premises of the assessee on 6-11-1986. There is nothing on record to establish that any money, bullion or jewellery was found at the premises. It is also notable that the returns of income for the years concerned in this case were not filed till 6-11-1986 i.e. the date of search. (4) Nothing has been brought on our record regarding any proceedings conducted by the Department after 6-11-1986 and before 25-3-1987 when the returns for both the years were filed by the assessee disclosing incomes of Rs. 1,12,000/- and Rs. 1,25,000/-respectively. (5) There is no evidence on record to prove that any proceedings Under Section 147 read with Section 148 of the Act were initiated against the assessee by the Assessing Officer for the two years concerned. (6) The returns were, therefore, not filed Under Section 139(1) but Under Section 139(4) of the Act. (7) The assessment order passed by the Assessing Officer mentions "Return of income was filed. In response to notice Under Section 143(2), Shri Narayan Demble, CA appeared. There was a search at the office and residential premises of the assessee. Certain documents were seized. The matter has been discussed with the assessee and her representative from time to time. After considering the position of the assets of the assessee as on 31-3-1984 and 31-3-1985, total income is computed as under :...". The Assessing Officer computed the income at Rs. 1,12,600 as shown by the assessee for 1984-85 and with similar notings assessed the income of the assessee at Rs. 1,39,940 including interest income as shown by the assessee for 1985-86. (8) No finding is recorded in the assessment order regarding the quantum of concealed income or regarding the furnishing of inaccurate particulars by the assessee in her return. Proceedings Under Section 271(1)(c) were, however, initiated.
(3.) IN the penalty order the Assessing Officer observed as below : It was obligatory on part of the assessee to file return of income before 31-7-84 but no return of income was filed on the said date. Proceedings Under Section 271(1)(c) were, therefore, initiated in view of the Explanation 5 to Section 271(1)(c) as the assessee deemed to have concealed the particulars of income or furnished inadequate particulars of such income. The noting for assessment year 1985-86 is also similar except that instead of date of 31-7-84 the date 31-7-85 has been mentioned. The Assessing Officer, therefore, imposed penalties of Rs. 53,083 and Rs. 64,370 for both the years on the following grounds: (1) That though the assessee had substantial income based in several investments on properties, FDRs etc. no return of income was filed even after expiry of due date for filing the return Under Section 139(1). (2) The provisions of Explanation 5 to Section 271(1)(c) are applicable to the facts of the case.;

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