ADDITIONAL COMMISSIONER OF INCOME TAX Vs. RASHEED AHMED

JUDGEMENT

(1.) THESE are the petitions under Section 256(2) of the Income-tax Act, 1961, arising out of the order of the Income-tax Appellate Tribunal, Hyderabad, dated 13th December, 1972, in I.T.A. No. 826/Hyd/1970-71 and 507, 508 and 509/Hyd/1972-73. They refer to the assessment years 1963-64, 1966-67, 1967-68 and 1968-69, respectively. There were delays in filing the returns for all these years. In the first year there was delay of 4 years 8 months, in the second 3 years 11 months, in the third 2 years 9 months and in the fourth one year 11 months. The assessee tried to explain the delay for the first year by saying that the matter had escaped his memory and that his income was share income from a firm and it took time to get the share particulars. He, however, made no attempt at all to give any explanation for the last three years. The Income-tax Officer imposed penalty under Section 271(1)(a) for all the four years for filing the returns very late in addition to charging interest on the amounts of tax due on the returns. The assessee carried the matters in appeals to the Appellate Assistant Commissioner. From a reading of the appellate order of that officer, it is seen that no other point but the question that both interest and penalty could not be imposed when there was delay was urged. This was negatived by the Appellate Assistant Commissioner and consequently there is an appeal before the Tribunal. The Tribunal held that there appears to be sufficient cause for the filing of the delayed returns.

(2.) THE Tribunal referred to the attempted explanation for the delay sought to be given by the assessee before it that his income was mainly from the share income from a firm and he required time for ' getting the share particulars and so he was not able to file the returns in time. THEn it pointed out that the departmental authorities had not shown that there was anything intrinsically wrong in the explanation furnished by the assessee. We are afraid that the Tribunal is not justified in making this criticism. This explanation was not put forward either before the Income-tax Officer nor was any attempt made before the Appellate Assistant Commissioner to give any explanation. This explanation in respect of the last three years was obviously put forward for the first time before the Tribunal. THErefore, there was no question of the departmental authorities finding anything intrinsically wrong in the explanation or accepting it. So, to this extent the criticism of the Tribunal is not justified.

(3.) FOR the foregoing reasons, we think that the four following points should be framed and the Income-tax Appellate Tribunal should, after stating a case, refer these questions to this court. They are as follows: