2000 PLP 632 (PTD)

K. A. SWAMI, C. J.

The following question has been referred for our decision: "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in cancelling the penalty levied under section 271(1)(a) for the assessment year 1970-71'?" The return ought to have been filed on August 16, 1970, for the assessment year 1970-71; whereas it was filed on December 30, 1972. The assessee applied for extension of time for filing the return. The Income-tax Officer granted time till November 15, 1970. However, the assessee filed the return as pointed out above, only on December 30, 1972. Therefore, the Income-tax Officer levied the penalty on accepting the explanation for the period up to June 30, 1971, for the period from July 1, 1971, to December 30, 1972, for the delayed filing of the return. Whereas in the appeal, the Appellate Assistant Commissioner found that the delay for the period from July 1, 1971, to December 31, 1971, has been properly explained. Therefore, he levied the penalty for the belated filing of return only for the period from January 1, 1972, to December 30, 1972. When the matter was carried to the Tribunal by the assessee relating to the penalty, the Tribunal took the view that the period of delay from January 1, 1972, to December 30, 1972, has also been properly explained. We have been taken through the order of the Tribunal. The Tribunal had gone on the basis of the due date and has observed that the assessee had reasonable cause for not filing the return on the due date and as such there was no delay. That reasoning of the Tribunal cannot be accepted to be correct. The law as explained by the Supreme Court in CIT (Addl.) v. I.M. Patel & Co. (1992) 196 ITR 297 is that there is nothing in section 271(1)(a) of the Income Tax Act, 1961, which requires that mens rea has to be established by the Department, before penalty can he levied under that section for delay in filing the return and that it is for the assessee, who files a belated return, to show "reasonable cause" for the delay. Therefore, the reasoning of the Tribunal based upon the decision of the Gujarat High Court in C,IT (Addl.) v. I. M. Patel & Co. (1977) 107 ITR 214 (FB). which stands overruled in the aforesaid decision of the Supreme Court cannot be approved as correct. Be that as it may, the Tribunal has also recorded another finding in paragraph 4 of its order that reasonable cause has been shown for the delay in filing the return on December. 30, 1972. It has concluded thus: "On the facts of the case it is clear that there was no conscious or deliberate disregard of the statutory obligation on the part of the assessee in submitting the return. That the assessee had reasonable cause for not filing the return on the due date being admitted and finding that the assessee had suffered a shock on account of his wife's death, it would be absolutely unjust without further facts to hold that the state of shock could exist or continue to exist for a particular period of time and not thereafter as seems to have been done by the Appellate Assistant Commissioner. The assessee must; therefore, be held to have reasonable cause justifying the delayed submission of the return and the penalty is liable to be cancelled on this point." The aforesaid finding being a finding of fact, it cannot be disturbed. We, therefore, answer the reference in the affirmative. M.B.A./3292/F ?????????????????????????????????????????????????????????????????????????????????? Reference answered