COMMISSIONER OF INCOME TAX Vs. PEARL CONSTRUCTION CO

JUDGEMENT

(1.) THE Tribunal has referred the following question of law of opinion of this Court under S. 256(1) of the INCOME TAX ACT, 1961 (hereinafter referred to as the Act) :

(2.) THE facts may be called out from the statement of the case. For the asst. year 1964 -65, the return of Income was due on 30th June, 1964. The return was however, filed on 26th Sept., 1965. For this default of fifteen months in the filing of the return, penalty proceeding under S. 271(1)(a) was initiated. Before the ITO it was stated that the assessee has filed the return in time but as that was not available on record, a duplicate return was filed. Before the ITO, however, no evidence whatsoever adduced to show that the return of income was filed within the time prescribed. After considering the explanation of the assessee, the ITO held that the delay in filing of the return was without any reasonable cause and imposed penalty as prescribed under law. The order of the ITO imposing penalty is annexed and is Annexure -A forming part of the statement of the case.

(3.) BEFORE the Tribunal it was submitted by the Id. Counsel for the assessee that there was no evidence regarding filing of the return as there was no system. Of obtaining receipt for the return filed and assessee was under the bonafide belief that the return had been filed. It was also submitted before the Tribunal on behalf of the assessee that even if penalty was to be imposed, advance tax paid was to be deducted in working out the tax payable. It was also submitted that interest under S. 139 of the Act having been charged, penalty should not have been levied under s. 271(1)(a).