G. Krishnamurthy, President - (1.)IN this appeal filed by the assessee against the order of the Commissioner (A), the question was whether the penalty Under Section 271(i)(a) was rightly, properly and legally imposed.
(2.)We have heard at great length the arguments addressed to us by the assessee's representative Shri R. Ganeshan and by the learned Departmental Representative Shri Subhash Kumar and we are of the opinion that the levy of penalty was not proper and justified in law.
The relevant facts are: The assessee was required for the year under appeal, namely, 1975-76, to file the return of income by 30-6-1975. As no return was filed, a notice Under Section 148 was issued on 2-3-1979, which was served on the assessee on 3-3-1979. The assessee, however, in the meantime submitted a return on 20-2-1979 i.e. before the issue of the notice Under Section 148, marking the return as 'duplicate'. The Income-tax Officer naturally required the assessee to prove how, when and where the original return was filed. In response to this enquiry, the assessee had only asserted that she had filed return sometime in June, 1975 through Shri S.C. Kumar & Company, Chartered Accountants but the receipt or the acknowledgement given by the Department was not produced on the ground that it was not available. However, in a bid to support the theory of filing the return in June, 1975, a photostat copy of the challan for payment of tax Under Section 140A on 5-1-1976 for Rs. 462 was filed and it was submitted that payment of tax Under Section 140A would not have been made on 5-1-1976 unless the return was filed sometime in June, 1975 and from this payment it should be inferred that the return was filed in June, 1975 or thereabout. Since the assessee was not able to prove that the return was filed in June, 1975, the explanation of the assessee was rejected and the payment of tax on 5-1-1976 was not considered as proof at all to show that the return was filed in June, 1975 because no one would wait under the law for 7 months to pay the self-assessment tax.

(3.)THE assessment was, however, completed and a notice to show cause as to why penalty should not be imposed for the late submission of the return was issued, in response to which the assessee had again stated that since the return was already filed and what was filed on 20-2-1979 was only a duplicate return and in any case since the return was filed immediately after the notice Under Section 148 was issued and within the time allowed under that section, there was no delay at all and therefore the penalty proceedings should be dropped. In the meantime the jurisdiction on the assessee was transferred from the earlier Income-tax Officer to the present Income-tax Officer (ITO, Distt. X(6), New Delhi). This officer gave a fresh opportunity to the assessee and in response to which it was submitted by letter dated 28-9-1983 that the penalty proceedings were initiated during the proceedings which were finalised on 28-9-1979 and that on appeal the Commissioner (A) had set aside the order of 28-8-1980 and as the proceedings now initiated for the levy of penalty were long after the time limit prescribed in Section 275 of the Income-tax Act had expired, the penalty proceedings were barred by limitation. THE Income-tax Officer held, however, that the arguments of the assessee were misconceived as according to him the order of the Commissioner (A) was made not on 28-8-1980 but on 30-4-1983. He argued that though the Commissioner (A) passed an order disposing of the appeal on 28-8-1980, that was an ex pane order. Later on that order was cancelled by the Commissioner (A) by his order dated 23-12-1981. THE appeal was thus restored to the file of the Commissioner (A) and that appeal was finally disposed of on 30-4-1983. THE time limit provided for in Section 275 has to be reckoned from the date of the final disposal of the appeal, namely, 30-4-1983 and not from the date 28-8-1980 when that order no longer existed/ having been recalled. THE time limit so reckoned, namely, 6 months from the date of the final appellate order, the penalty order passed by the Income-tax Officer was well within time and was not barred by limitation. Thus disposing of the objections raised by the assessee against the imposition of penalty, the Income-tax Officer proceeded to levy the penalty computing the delay at 43 months. One more fact may be noted here that in the meantime the assessee Smt. Nani Bai expired and her executor was brought on record and the penalty order was passed on the executor.