• Mar
  • 29
  • 2012

Penalty u/s. 271F applicable for failure to funish return u/s. 153A

From a bare reading of section 139 and 153A , it is evident that the provisions of section 271F are attracted when a person is required to furnish the return in accordance with section 139(1) or by provisos of that section. Section 153A starts with non-obstante clause and the purpose is only to specify separate time limit for filing the return. The only distinction in section 153A is that the AO is required to issue notice to the assessee requiring him to furnish the return within such period, as may be specified in notice, but otherwise the provisions of the Act have been made applicable accordingly, as if such return were a return required to be furnished u/s. 139. Therefore, all the consequences following for failure to file the return u/s.139 will follow u/s.153A also. We, therefore, do not find any infirmity in the order of ld CIT (A) to interfere and, accordingly, uphold the same.

INCOME TAX APPELLATE TRIBUNAL, MUMBAI.

I.T.A. Nos.2919 to 2924/Mum/2009

Assessment years: 2001 to 2001 to 2006-2007

Kashinath Tapuriah v. DCIT

O R D E R

Per S.V.Mehrotra, AM

These six appeals filed by the assessee are directed against a consolidated order dated 14.1.2009 of ld CIT (A)-Central-1, Mumbai for the assessment years 2001-02 to 2006-07, respectively.

2. The effective ground of appeal in all these appeals is that ld CIT (A) erred in upholding the order of the Assessing Officer imposing penalty u/s.271F of the I.T.Act.

3. Facts in brief are that for all the assessment years under consideration, notice u/s. 153A was issued on 21.9.2007 calling for the assessee to file his return of income. The assessee did not file his return of income u/s.153A. As no return of income was filed by the assessee, penalty proceedings u/s.271F of the Act for non-filing the return of income, were initiated and show cause notice was issued to the assessee. The assessee did not file any reply. Therefore, the AO after examining the provisions of section 271F and 153A, concluded that the provisions of section 139 are applicable in respect of returns to be  filed u/s. 153A. He, therefore, levied the penalty of Rs.5,000/- for each of the assessment years.

4. Ld CIT (A) following the order for the assessment year 2000-200 1, confirmed the AO’s action. Being aggrieved, the assessee is in appeal before the Tribunal.

5. Ld Counsel for the assessee submitted that the assessment for A.Y. 2000-200 1 was done under the provisions of section 143 in regular assessment. He pointed out that in case of regular assessment, the provisions of section 139 are applicable but in case of search proceeding s/s. 153A, the provisions of section 139 are not applicable and the return is to be filed u/s. 153A in terms of time given in the notice. He, therefore, submitted that the facts of A.Y. 2000-200 1 are entirely different from the facts for the assessment years under consideration. He submitted that the provisions of section 271F are not applicable to search proceedings.

6. Ld D.R. relied on the orders of the lower revenue authorities.

7. We have heard both the sides and perused the record of the case. The provisions of section 271F reads as under:-

“PENALTY FOR FAILURE TO FURNISH RETURN OF INCOME.

If a person who is required to furnish a return of his income, as required under sub-section (1) of section 139, fails to furnish such return before the end of the relevant assessment year, he shall be liable to pay, by way of penalty, a sum of one thousand rupees :

Provided that a person who is required to furnish a return of his income, as required by the proviso to sub-section (1) of section 139, fails to furnish such return on or before the due date, he shall be liable to pay, by way of penalty, a sum of five hundred rupees.”

The provisions of section 153 A reads as under:-

“Not withstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153 in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31ast day of May, 2003, the AO shall –

(a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139.”

7. From a bare reading of both sections, it is evident that the provisions of section 271F are attracted when a person is required to furnish the return in accordance with section 139(1) or by provisos of that section. Section 153A starts with non-obstante clause and the purpose is only to specify separate time limit for filing the return. The only distinction in section 153A is that the AO is required to issue notice to the assessee requiring him to furnish the return within such period, as may be specified in notice, but otherwise the provisions of the Act have been made applicable accordingly, as if such return were a return required to be furnished u/s. 139. Therefore, all the consequences following for failure to file the return u/s.139 will follow u/s.153A also. We, therefore, do not find any infirmity in the order of ld CIT (A) to interfere and, accordingly, uphold the same.

8. In the result, appeals are dismissed.

Pronounced on 16th April, 2010


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