2005 PLP (Trib (PTD)

31-12-1995 Period of default 92 days Amount of penalty fixed 2,000 Penalty @ 200 for the period of default of 92 days 92 x 200 18,400 Total amount of Penalty 20,400 The assessee duly confronted and called upon to explain as to why penalty under section 108(b)(ii) of the Income Tax Ordinance, 1979 may not be levied for late filing of statements by 90 days. The Assessing Officer/special officer of Circular C-07, Cos. 1, Karachi, disagreed with the reply/contention that since normal return was filed in December along with the return of income, therefore, penalty under section 108(b) was not leviable. It was observed in the order that section 143B of the Income Tax Ordinance, 1979 specifically mentioned 30th September as last date for filing of statements under section 14313, hence penalty under section 108(b) was imposed with the statutory approval of learned IAC, dated 27-6-2002.

3. Through a consolidated order, dated 23-9-2002, the learned CIT(A) dismissed the appeals preferred by the assessee observing that provision of law as contained in section 143B specifically provides that the statements under section 143B had to be filed on or before 30th September.

4. Heard the learned representatives of the two parties. It is argued that the statement under section 143B is submitted in case income is' covered only under section 80C, whereas in case of assessee, the income is covered under sections 62 and 80C, therefore, the statements have been submitted along with the returns on 31st December in each year under appeals. It is added that the order under section 108(b)(ii) is time barred there is no loss to revenue, default is not wilful, both the returns have been filed together voluntarily, no notice has been served to furnish the statements. In addition, it is vehemently argued that the word `default' in legal terminology, necessarily imports an element of negligence and means something more than mere non compliance and in the circumstances no parallel action is to be taken unless the Revenue discharges its onus of proving through some incontrovertible evidence that default is wilful and deliberate. In rebuttal, the learned D.R. argued that the major prerequisite for imposition of penalty has always been a default committed without reasonable cause but onus exclusively lies with the assessee to prove that the default is neither wilful nor deliberate, contrary to this, the Department has made out a crystal clear case that there is a wilful default as reasons shown in the reply of the assessee, is nothing but to gain time in filing statements on mere presumptions that in case of normal return the restriction of filing the statements on or before 30th September, impliedly goes away.

5. Admittedly there appears no controversy regarding (i) date fixed for filing statements under section 143-B viz. on or before 30th September and (ii) filing of statements by the assessee on 31st December along with the normal returns. The only plea taken by the assessee is that its income is covered under sections 62 and 80C, therefore, the time limit automatically extends till the date of filing of normal returns, which is filed on 31st December in each assessment year. The reason advanced by the assessee, is apparently presumptive possessing no sound legal footings as law does not provide flexibility in time except a reasonable cause is shown. The assessee has not been able to make out a case that the law permits to file the statements even after 30th September, along with the normal return in case time for filing of normal returns falls after 30th September. It is worth mentioning that no provision of law finds place in the relevant income tax law allocating different dates for filing statements along with return for income covered under section 62.

6. We are in agreement with the learned counsel for the assessee that it is held in number of cases that no penal action is to be taken against the taxpayer unless the Revenue discharges its onus of proving through some incontrovertible evidence that default was committed wilfully and deliberately. The learned counsel in this context relied upon a case-law reported as 2003 PTD (Trib.) 1698 and PLD 1967 (SC Pak) p.53. However in the, present case, the cause of delay explained by the assessee itself reflects wilful and deliberate default, as self and concocted interpretation of law to gain time for filing the statement under section 143B amounts to wilful default. The assessee deliberately for no cause thereof, waited for filing statement till the date of filing of return under normal law. In our view it is something more than mere non-compliance and imports an element of negligence or fault. Since other grounds, related to no loss of revenue, filing of returns together under confusion, and service of notice requiring the assessee to furnish the statement, also bears no weight, hence in the circumstances, supra, all the three appeals stand dismissed. H. B. T./340/Tax (Trib.) Appeals dismissed.