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The Commissioner Of Income Tax v. Shekhar Chand Jain - INCOME TAX REFERENCE No. 7 of 1990 [2005] RD-AH 876 (24 March 2005)


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I.T.R. 07 of 1990


Commissioner of Income Tax, Meerut Vs.

   M/s. Shekhar Chand Jain & Sons, Meerut



Hon'ble R.K.Agarwal, J.

Hon'ble Prakash Krishna, J.

(Delivered by Hon.P.Krishna, J)

The Income Tax Appellate Tribunal, Delhi has referred the following question of law under section 256 (1) of the Income Tax Act, 1961 ( here in after referred to as the Act) for opinion to this Court:-

"Whether the ITAT was right to cancel the penalty levied under Section 271 (1) (a) treating the registered firm as unregistered firm in view of the provisions of Section 271 (2) of the I.T.Act, while under similar circumstances penalty was held to be leviable in the case of Kalu Ram Ladha Ram Vs. CIT ( 78 I.T.R. 136)?"

Briefly stated the facts giving rise to the present case are as follows:-

The reference relates to the assessment year 1983-84. The respondent assessee, a partnership registered firm filed its return late with the delay of two complete months in its filing. The assessing authority initiated penalty proceeding under section 271 (1) (a) of the Act. The penalty proceeding was contested by the assessee, on the plea that the tax finally assessed was less than what has been paid by it as advance tax and, therefore, no penalty is leviable. This plea was not accepted by the assessing authority in view of Section 271 (2) of the Act and he levied penalty of Rs.10541/-. The penalty order was confirmed in appeal, but has been set aside in further appeal by the Tribunal.

Heard Shri Dhananjai Awasthi, the learned standing counsel for the department and the learned counsel for the assessee.  

Section 271(1) (a) of the Act provides that the Income-tax Officer in the course of any proceeding under this Act if it is satisfied that any person has failed to furnish return of total income which he was required to furnish under sub section (1) of Section 139 or by notice given under sub section (2) of section 139 or Section 148 or has failed to furnish it within the time allowed in the manner required by sub section (1) of section 139 or by such notice as the case may be, may direct that such person shall pay penalty. Sub section (2) of section 271 of the Act reads as follows:-

"When the person liable to penalty is a registered firm or an unregistered firm which has been assessed under clause (b) of Section 183, then notwithstanding the fact that any thing contained in the other provisions of this Act, the penalty imposable under sub section (1) shall be the same amount as would be imposable on that firm if that firm were an unregistered firm."

Thus, section 271 (1) (a) envisages imposition of penalty for failure to file the return of total income or delayed filing of return without reasonable cause, and also for failure to file it in the manner and within the time required. The parameter for levy of penalty is the period of delay viz. default in filing the return of total income without reasonable cause. Section 271 (1) (a) (i) (b) of the Act prescribes manner for calculation of the penalty. It says that in addition to the amount of tax, if any, payable by the assessee, a sum equal to 2 per cent of the assessed tax for every month during which default continued to be leviable as penalty. The combined reading of  section 271 (1) (a)  with 271(2) and 271 (1) (a) (i) (b) is that the imposition of penalty is linked with the assessed tax. Explanation attached to section 271 (1) (a) (i) (b) defines the assessed tax which means tax as reduced by the sum, if any, deducted at the source or paid in advance.

In the present case the return was filed with delay by the assessee which was a registered firm. Sub section (2) of section 271 of the Act provides that for the purposes of calculation of amount of penalty under section 271 (1) (a) of the Act the assessee shall be deemed to be treated as unregistered firm who worked out the tax assessed. Meaning thereby that so far as the levy of penalty is concerned for the default committed under section 271 (1) (a), the assessee would be treated as unregistered firm. We could lay our hands on a judgment of this Court in the case of Ram Bilas Purshottam Das vs. CIT 201 ITR 11 wherein it has been held as follows:-

"The legal position is that the penalty exigible for delay or default in furnishing the return of income shall be two per cent for every month during which the default continued  and the quantum of penalty is to be calculated with reference to the "assessed tax" i.e. tax payable on total income, as reduced by the sum, if any, deducted at source or paid as advance tax. However, if the defaulter is a registered firm, for the purpose of imposition of penalty, the firm is to be treated as an unregistered firm and, so treated, the "assessed tax" must be calculated on the basis that it was an unregistered firm."  

This Court  has followed the judgment of Madhya Pradesh High Court delivered in Delux Publishing Co. Vs. Additional Commissioner of Income-tax (1981) 127 ITR 782. The following paragraph of Madhya Pradesh High Court is quoted therein:-

"By section 271 (2) of the Act, a fiction is created and even if the person liable to penalty is a registered firm, the penalty imposable under section 271 of the Act shall be the same amount as would be imposable on that firm if that firm were an unregistered firm. Therefore, in the case of registered firm, the tax assessable has to be worked out as if it were an unregistered firm and on that basis the penalty has to be calculated because of fiction created has to be carried to its logical extent....................  .  In our opinion in the cases covered by section 271 (2) of the Act, in order to calculate the penalty, the tax payable by the assessee on the income assessed has to be determined on the basis that the assessee is an unregistered firm and the penalty has to be calculated on the tax so determined."

Respectfully following the aforesaid judgment we answer the above question in negative i.e. in favour of the Revenue and against the assessee. There shall be however, no order as to costs.

Dated: 24th March 2005.



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