High Court Of Patna
CIT vs. Baldeo ChoudharyÂ Vijay Kumar
S. K. Jha, Actg., C.J. & B. N. Agrawal, J.
Taxation case No. 49 of 1980
5th January, 1988
K. K. Vidyarthi & S. K. Sharan, for the Revenue : Ajit Mitra, for the Assessee
BY THE COURT
A statement of the case has been submitted by the Tribunal, “B” Bench, Patna, under, s. 256(1) of the IT Act and the following question has been referred to this Court for opinion :
“Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that once the notice under s. 139(2) had been served, no penalty could be imposed for the default of one month under s. 139(1) of the IT Act, 1961 ?”
The Tribunal has taken a view in favour of the assessee and against the Revenue. It is needless to go into the facts as a pure question of law is actually involved and is squarely covered by a Full Bench decision of this Court in Jamunadas Mannalal vs. CIT (1985) 152 ITR 261 (Pat) (FB). More or less, the same question was involved in the case of Jamunadas Mannalal (supra). By a majority, this Court held this question against the assessee and in favour of the Revenue. It was held by the Full Bench as follows (p. 289): “To conclude, I hold that on the facts and in the circumstances of the case, penalty under s. 271(1) is leviable upon the assessee …… on the basis of tax as an unregistered firm has been validly levied on the assessee for the asst. yr. 1966-67. It is thus obvious that all the questions referred to this Court have to be answered against the assessee. The question as to whether penalty under s. 271(1)(a) could be imposed even after charging interest under s. 139 for delayed submission of return in all its aspects including the broad question as reframed, whether, in the facts and in the circumstances of the case, penalty under s. 271(1) is leviable or not is answered in the affirmative.”
We are, therefore, constrained to hold that the view taken by the Tribunal was not correct. The question referred to this Court as mentioned at the outset must, therefore, be answered in favour of the Revenue and against the assessee. We, accordingly, hold that the Tribunal was not justified in holding that once the notice under s. 139(2) of the IT Act, 1961, had been served, no penalty could be imposed for the default under s. 139(1) of the IT Act, 1961.
The question thus referred to this Court is answered in the affirmative, in favour of the Revenue and against the assessee. Parties shall bear their own costs.
Let a copy of this judgment be sent under the seal of this Court and the signature of the Registrar to the Tribunal, “B” Bench, Patna.
[Citation : 172 ITR 453]