Income Tax Appellate Tribunal - Delhi
Navjeevan Foundation, New Delhi vs Assessee on 23 April, 2010
1 ITA No. 1959/D/09
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'F' NEW DELHI
BEFORE SHRI VIMAL GANDHI HON'BLE PRESIDENT AND
SHRI R.C. SHARMA, ACCOUNTANT MEMBER
ITA NO. 1959/DEL/2009
ASSTT. YEAR: 2004-05
Navjeevan Foundation, Vs Addl. Director of Income Tax
252, Nazar Singh Place, (Exemptions), Range-II,
11, Sant Nagar, New Delhi.
New Delhi-110065
(Appellant) (Respondent)
Appellant by: Shri Pradeep Batra
Respondent by: Smt. Banita Devi Nareen, Sr. DR
O R D E R
PER VIMAL GANDHI, PRESIDENT This appeal by the assessee for AY 2004-05 is directed against order of CIT(A) upholding levy of penalty of Rs.39,600/- u/s 272 A(2)(e) of Income Tax Act 1961 for delay in filing of the return.
2. The assessee is a Trust and has small income. However, in the light of provision of Seciton 139(4A) it was required to submit its return of income by 31.10.2004. It filed its return on 2.12.05. About the assessment there is no dispute. However, for the delay in the submission of return, the AO imposed penalty of Rs.39,600 with the following observations:-
"Here in this case, as per the Income and Expenditure A/c, the voluntary contributions/donations received by 2 ITA No. 1959/D/09 the assessee are to the tune of Rs.2,00,600/-. Hence, the total income of the assessee clearly falls above the maximum amount chargeable to tax and the assessee was liable to file its income tax return.
Since the assessee has defaulted in filing its return of income within the statutory time limit and has not offered any satisfactory and valid reasons whatsoever for the delay despite having been given so many opportunities, it is clear that the assessee has deliberately not filed the return of income on time, thereby flouting the statutory provisions of the Income Tax Act, for which penalty of Rs.100/- is leviable for every day during which the failure continues. In this case, there is a delay of 396 (three hundred ninety six only) days, for which a penalty of Rs.39600/- (396 x100 = 39600) is worked out and imposed on the assessee."
3. The assessee challenged above levy in appeal before the ld. CIT(A) but remained unsuccessful. The ld. CIT(A) maintained that appellant did not furnish any cogent reason for inordinate delay of 396 days for filing the return before the Addl. DIT(E) or before him. Accordingly, levy of penalty was held to be justified and confirmed.
4. In proceedings before the appellate tribunal, the assessee reiterated its submission in writing (as also in oral arguments) which is as under:-
"The trust was formed on 16.9.2003 and first accounting period was closed on 31st March 2004. Thus the assessment year 2004-05 is the first year of the trust and which is also not a full year. The trust is in its initial stages of its operation only and not much activity has taken place, and is not fully organized. There was no tax due on the total income and the return was filed voluntarily and is 3 ITA No. 1959/D/09 filing its return of income regularly. A penalty of Rs.39,600/- has been imposed on the returned and assessed income of Rs.28,453/- which is too harsh particularly when there is no income tax due on the income."
5. We have considered the facts and circumstances of the case and submission of the parties. The levy of penalty may be harsh but it cannot be deleted on that ground. The assessee in terms of Section 139 (4A) of the Income Tax Act had a statutory obligation to submit the return in time. The penalty has been levied as no reasonable cause for the delay has been shown either before the revenue authorities or before us. It has been submitted that the assessee voluntarily filed the return and had no income. Nothing beyond that has been claimed. The inordinate delay in the submission of return has not been explained. Without any explanation of delay, we are unable to interfere in the impugned order of ld. CIT(A). The question that charitable trust is liable to file the return u/s 139(4A) even if its income is nil and in case the same is not filed, the trust is liable to pay penalty, has been considered and decided against the assessee as per the following decisions:-
i) Godiji Parshwanathji Jain Vs CIT 226 ITR 798 (Gujarat)
ii) Director of Income Tax(Exemptions) Vs Malad Jain Yuvak Mandal Medical Relief Centre and Sushmavati Educational Trust 250 ITR 488 (Bombay) 4 ITA No. 1959/D/09
6. In the light of above discussion, we confirm the levy of penalty.
7. In the result, the appeal of the assessee is dismissed.
Order pronounced in Open Court on 23.4.2010.
Sd/- Sd/-
(R.C. SHARMA) (VIMAL GANDHI)
ACCOUNTANT MEMBER PRESIDENT
Dated: April 23rd, 2010.
'GS'
Copy to:
1. Navjeevan Foundation, New Delhi.
2. Addl. DIT(Exemptions), New Delhi.
3. CIT(A)-XXI, New Delhi.
4. CIT 5. DR
BY ORDER
Dy.Registrar, ITAT