Karnataka H.C : the penalty under s. 271(1)(a) of the Act is liable to be cancelled by accepting the reasonable cause assigned by the assessee that he was not able to pay advance tax without taking into account that fact that the assessee received a sum of Rs. 10,80,000 out of the sale proceeds and an advance of Rs. 9,00,000 during the said assessment year.

High Court Of Karnataka

CIT & ANR. vs. U. Manohar Rao

Section 271(1)(a)

Asst. Year 1988-89

K.L. Manjunath & Mrs. B.V. Nagarathna, JJ.

IT Appeal No. 2888 of 2005

2nd March, 2010

Counsel appeared :

K.V. Aravind for M.V. Seshachala, for the Appellants : S.P. Bhat, for the Respondent

JUDGMENT

Mrs. B.V. Nagarathna, J. :

The Revenue has preferred this appeal challenging the order dt. 14th March, 2005 passed in ITA No.343/Bang/2003 by the Tribunal raising the following substantial questions of law :

“(1) Whether the Tribunal was correct in holding that the penalty under s. 271(1)(a) of the Act is liable to be cancelled by accepting the reasonable cause assigned by the assessee that he was not able to pay advance tax without taking into account that fact that the assessee received a sum of Rs. 10,80,000 out of the sale proceeds and an advance of Rs. 9,00,000 during the said assessment year.

(2) Whether the Tribunal should have recorded its finding by examining the merits of the explanation before accepting the same and therefore recorded a perverse finding.

(3) Whether the Tribunal should have taken into consideration that the assessee had not assigned any explanation for belated filing of the return of income and explanation offered was only for the purpose of belated payment of taxes.”

The respondent-assessee filed his return of income for the asst. yr. 1988-89 declaring a total income of Rs.4,88,130. The said assessment was processed under s. 143 r/w s. 147 of the IT Act and was completed on 27th March,1997. The AO, however initiated proceedings under s. 271(1)(a) of the Act and notices were issued requesting the assessee to show cause as to why penalty under the said provision should not be levied for filing return of income belatedly. The respondent assessee explained stating that he was not in a position to pay the self assessment tax on account of paucity of funds and therefore, the said explanation had to be taken into consideration and penalty proceedings be dropped. The AO, however, did not accept the explanation offered by the assessee and proceeded to levy penalty by his order dt. 22nd Aug., 1997, which order was challenged by the assessee before the CIT(A) and being unsuccessful, the assessee challenged the order of the appellate authority dt. 26th Dec., 2002, before the Tribunal, Bangalore Bench. The Tribunal while accepting the explanation offered by the assessee, set aside the order of penalty dt. 22nd Aug., 1997. Being aggrieved by the said order, the Revenue has preferred this appeal.

We have heard learned counsel for the Department and learned counsel for the respondent assessee. It is pointed out that on behalf of the assessee, that the reason for the belated filing of the IT returns was for not having sufficient funds to pay the tax and therefore, the said explanation is a valid and sufficient cause. But the AO did not accept the same and had erroneously levied penalty proceedings.

On a perusal of the material on record, it is noticed by us that the assessee has income from house property and agricultural lands. That one of the house properties was demolished and taken up for construction of a commercial complex and portions of the said properties was sold after construction and the proceeds were utilised for completion of the said building. It is also on record that the assessee was receiving rental income from other properties. Merely because the assessee had taken loans for the construction of the said building, it cannot be said that the assessee had no funds to pay the self-assessment tax as a Karta of the HUF. It is on record that the assessee was receiving rental income and also had sold portions of the building which was demolished and constructed. Therefore, it was incumbent on the assessee to first pay the tax that were due by filing the return in time and thereafter utilise the balance funds for other purposes. A citizen is under a duty to pay his taxes regularly and honestly. There is behind every taxation a moral sanction as it is behind every welfare legislation. Taxes are in fact the life blood of the Government. Due payment of taxes should be considered as a moral obligation of every citizen as safe guarding public revenues and public property is a fundamental duty which should be cultivated by every citizen. Though it is open to every person to arrange his affairs so as to reduce the brunt of taxation to a minimum and such a process would not amount to tax evasion, colourable devices for the purpose of tax planning or to avoid payment of taxes has to be curbed. Similarly the nonpayment of taxes has to be viewed seriously by Courts as well as by the authorities concerned.

In the instant case, the explanation offered by the assessee was that there were no funds to pay the self-assessment tax. But in the face of the aforesaid facts the said explanation was rightly not accepted by the AO. Hence, in our view the levy of penalty was just and proper. The Tribunal was not right in brushing aside the said facts and accepting the explanation of the assessee that there was a paucity of funds which was not a valid reason for not paying the tax and also assessment in time. Therefore, the imposition of penalty under s. 271(1)(a) of the Act is just and proper. The substantial questions of law raised are accordingly answered in favour of the Revenue. We accordingly allow the appeal filed by the Revenue by setting aside the order of the Tribunal.

[Citation : 325 ITR 402]