Income Tax Appellate Tribunal - Amritsar
Sub Registrar,, Nakodar vs Assessee
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH; AMRITSAR.
BEFORE SH. H.L. KARWA, VICE PRESIDENT AND
SH. MEHAR SINGH, ACCOUNTANT MEMBER
I.T.A. Nos.404 to 407(Asr)/2010
Financial years:2005-06 to 2008-09
PAN :JLDT00005F
Sub-Registrar, Vs. Director of Income-tax (CIB),
Tehsil Office, Nakoar. Chandigarh.
(Appellant) (Respondent)
Appellant by: Sh. J.S. Bhasin, Adv.
Respondent by: Sh. Tarsem Lal
ORDER
Per H.L. Karwa, VP These four appeals by the assessee are directed against the consolidated order of Director of Income-tax (CIB), Chandigarh), dated 27.07.2010, relating to financial years, 2005-06, 2006-07, 2007-08 & 2008-
09.
2. In these appeals, the assessee has challenged the imposition of penalty of Rs.12,800/-, Rs.18,200/-, Rs.30,300/-, and Rs.11,400/- for delayed filing of AIR for the financial years 2005-06, 2006-07, 2007-08 & 2008-09. The issue is common and, therefore, we will decide the same by this common order, for the sake of convenience.
3. The brief facts noted by the Director of Income-tax (CIB), Chandigarh, are as under:
2"Order u/s 271FA of the Income-tax Act, 1961 The Sub-Registrar, Tehsil Office, Nakodar (Punjab), (hereinafter referred to as 'the Filer'), was required to file Annual Information Return for the Financial years 2005-06, 2006-07, 2007-08 & 2008-09 as under:
Financial year Due Date for filing of AIR
2005-06 31.08.2006
2006-07 31.08.2007
2007-08 31.08.2008
2008-09 31.08.2009
2. Section 285BA(10 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') requires certain specified persons (filers) to file an Annual Information Return (AIR) in respect of specified financial transactions registerd or recorded by him during the financial year. The nature of the transactions and the threshold value for information to be submitted in the AIR are prescribed in the Table (Item No.6) in Rule 116E of the Income Tax Rules, 1962. The form in which the return is required to be filed is Form No. 61A. The Central Board of Direct Taxes, New Delhi had authorized M/s. National Securities Depositories Ltd. (NSDL) as the agency authorized to received AIRs on the behalf of the Commissioner of Income Tax (Central Information Branch). The filer can also furnish the AIR with the Facilitation Centres of NSDL, located in different parts of the country.
3. Item No. 6 of the Table in Rule 114E specifies that the Registrar or Sub- Registrar appointed u/s 6 of the Registration Act, 19808 is required to file AIR in respect of transactions of purchase or sale by any person or immovable property valued at thirty lakh rupees or more. The due date for filing the AIR is the 31st August immediately following the financial year in which the transaction is registered or recorded. In the even of failure to furnish the AIR, penalty is leviable u/s 271FA which is reproduced as under:
"If a person who is required to furnish an Annual Information Return, as required under sub-section(10 of Section 285BA, fails to furnish such return within the time prescribed under that sub-section, the income tax authority prescribed under that sub-section may direct that such person shall pay, by way of penalty, a sum of one hundred rupees for every day during which the failure continues."
4, As per the records of this office, The Sub-Registrar, Tehsil Office, Nakodar, (Punjab), the Filer, filed the Annual Information Return (AIRs) late, in respect of purchase and sale by any persons of immovable property valued at thirty lakh rupees or more for the Financial years 2005-06, 2006-07, 2007-08 & 2008-09 as per the details given below:
3S.No. Financial year Due date for Filed on Delay
filing AIR
1. 2005-06 31.08.2006 06.01.2007 128 days
2. 2006-07 31.08.2007 01.03.2008 182 days
3. 2007-08 31.08.2008 30.06.2009 303 days
4. 2008-09 31.08.2009 23.12,2009 114 days
5. In this regard show cause notice for the financial years 2005-06, 2006-07, 2007-08 & 2008-09 was issued by this office on 28.01.2010 asking the Sub- Registrar to show cause as to why penalty u/s 271FA of the Act should not be imposed upon it for failure to furnish the AIRs in time, and the reply was sought by 17.02.2010. In response to this show cause neither anybody attended nor any request for adjournment etc. was received in this office. However, the Filer was allowed another opportunity to file its written reply vide this office letter No. DIT/CIB/CHD/2009-10/4834 dated 23.02.2010 and the case was fixed for hearing on 03.03.2010. Again this final opportunity letter remained un-attended. Second show cause was issued to the Filer vide this office letter No. DIT/CIB/CHD/2010-11/992 dated 26.06.2010 fixing the case for hearing on 08.07.2010. Again on 08.07.2010 neither anybody attended nor any written communication was received in this office.
5.1. Still further final opportunity was allowed to the Filer for filing its reply vide this office letter No.DIT/CIB/CHD/2010-11/1105 dated 09.07.2010 and the case was fixed for 16.07.2010. This final opportunity too remained unattended. Still further opportunity was allowed to the Filer for furnishing its reply showing reasonable cause that constrained it to file the AIRs late. The case was fixed for 26.07.2010. on the appointed date none attended. However, on 27.07.2010 Shri Bhupinder Singh, Tehsildar-cum-Sub-Registrar, Nakodar, Distt. Jalandhar, attended and filed letter dated 27.07.2010 and submitted that the matter may be decided on the basis of his reply filed today. He further submitted that the matter may be decided on the basis of his reply filed today. He further submitted that he is not aware about the reasons for delay in filing of AIR for earlier years and he has been in this present assignment only since September, 2009 and would try to file the further AIRs in time. The written reply/letter dated 27.07.2010 filed by the Filer is reproduced as under:
"It is submitted aht I am working as Tehsildar at Nakodar for the last quarter of 2009 to till date. In my time the statements whatever can be done, I tried best to deposit in earlier. But there is very shortage of staff and shortage of computer learning staff also and I have to perform very multi-dimensional dutieis also. So my duty is very hard. As for few months, I am already much busy in election registration role work and census work also. So it may be some time late due to very unavoidable circumstances not intentionally.
So it is humbly requested to your goodself to please consider my compulsions and I hereby tender my un-conditional apology for this."4
6. I have carefully considered the contentions of the Filer and perused the relevant record. The explanations offered by the Filer in its reply quoted above are not acceptable in view of the following:
i) The Filer has, in his letter only mentioned about the fact of his joining in September, 2009, shortage of staff and lack of computer literate persons available in office to perform the required duties.
ii) The Filer is only mentioning about the problems during this period i.e. September, 2009 onward, whereas the show cause notices issued are about the delay in filing of AIR from financial year 2005-06 to 2008-09. So practically whatever the filer was mentioned in its letter is not relevant to the delay in earlier years.
In other words, it appears that the Filer has no explanation to offer for the delay in filing of AIRs for these years. Therefore, in the absence of any explanation, leave alone reasonable cause, the submissions of the Filer are not acceptable as these are not found relevant to the delay in filing of AIRs at the relevant point of time.
iii) Further, it appears that the Filer is only concerned about clearing his own name and does not seem to be concerned at all about the delay in filing of AIR during earlier years i.e. during the tenure of its predecessors. The penalty proceedings are not in respect of the persons specific, these are in respect of the office which the incumbent has occupied at present. In any case whatever the Filer stated in his submissions is not relevant and hence not acceptable.
7. Further, it is also important to note that the Filer i.e. the Sub-Registrar, Nakodar, has been filing AIRs late for the last five years i.e. right from financial year 2005-06 to 2008-09. Hence, these facts make the Filer a habitual defaulter without any concern/respect for the law of the land. In these circumstances it becomes imperative that suitable penalty as per law is levied on the Filer.
8. In view of these facts and circumstances the Sub-Registrar, Nakodar (the Filer) is held liable for penalty u/s 271FA of the Act, 1961 @ Rs.100/- per day for default, which is calculated for the financial years under consideration as under:
Financial year Period of default No. of days of Amount of penalty default 2005-06 1.9.2006 to 6.1.2007 128 days Rs.12,800/-
2006-07 1.9.2007 to 1.3.2008 182 days Rs.18,200/-
2007-08 1.9.2008 to 30.6.2009 303 days Rs.30,300/- 2008-09 1.9.2009to23.12.2009 114 days Rs.11,400/-
TOTAL 727 days Rs.72,700/-
Accordingly, penalty of Rs.72,700/- (727x1000 is imposed."5
4. At the very outset, Sh. Tarsem Lal, the Ld. DR, vehemently argued that this Bench of the Tribunal has no jurisdiction to entertain the appeals of the assessee. According to him, the appeals should have been filed before the concerned Ld. CIT(A), as per provisions of section 246A(1)(q) of the Act, and not before the Tribunal. He also invited our attention to the provisions of section 253 of the Act, wherein no jurisdiction to entertain the appeals against the order passed under section 271FA, has been given to the Tribunal. On the other hand, Shri J.S. Bhasin, the Ld. Counsel for the assessee, submitted that the Tribunal has the jurisdiction to decide the present appeals and, therefore, the appeals may be decided on merits.
5. We have heard the rival submissions on the issue of jurisdiction of the Tribunal to entertain these appeals. In our view, this Bench of the Tribunal has no jurisdiction to decide the appeals passed by the Director of Income-
tax (CIB), Chandigarh, because there is no provisions under section 253 of the Act, to entertain the appeals by the Tribunal. Section 253 of the Act, reads as under:
"Appeals to the Appellate Tribunal.
253. (1) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order--
(a) an order passed by a [Deputy Commissioner (Appeals)] [before the 1st day of October, 1998] [or, as the case my be, a Commissioner (Appeals)] under [***] [section 154], [***] section 250, [section 271, section 271A or section 272A]; or [(b) an order passed by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, after the 30th day of June, 1995, but before the 1st day of January, 1997; or] 6 [(ba) an order passed by an Assessing Officer under sub- section (1) of section 115VZC; or]
(c) an order passed by a Commissioner [under section 12AA [or under clause (vi) of sub-section (5) of section 80G] or] under section 263 [or under section 271] [or under section 272A] [***] or an order passed by him under section 154 amending his order under section 263] [or an order passed by a Chief Commissioner or a Director General or a Director under section 272A; [or]] [(d) an order passed by an Assessing Officer under sub-
section (3), of section 143 or section 147 in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order.] (2) The Commissioner may, if he objects to any order passed by a [Deputy Commissioner (Appeals)] [before the 1st day of October, 1998] 1[or, as the case may be, a Commissioner (Appeals)] under [section 154 or] section 250, direct the [Assessing] Officer to appeal to the Appellate Tribunal against the order.
(3) Every appeal under sub-section (1) or sub-section (2) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the Commissioner, as the case may be :
[Provided that in respect of any appeal under clause (b) of sub- section (1), this sub-section shall have effect as if for the words "sixty days", the words "thirty days" had been substituted.] (4) The [Assessing] Officer or the assessee, as the case may be, on receipt of notice that an appeal against the order of the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] has been preferred under sub-section (1) or sub-section (2) by the other party, may, notwithstanding that he may not have appealed against such order or any part thereof; within thirty days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order8 of the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)], and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant 7 period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. (6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, in the case of an appeal made, on or after the 1st day of October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto, be accompanied by a fee of,--
(a) where the total income of the assessee as computed by the Assessing Officer, in the case to which the appeal relates, is one hundred thousand rupees or less, five hundred rupees,
(b) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, one thousand five hundred rupees,
(c) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than two hundred thousand rupees, one per cent of the assessed income, subject to a maximum of ten thousand rupees,
(d) where the subject matter of an appeal relates to any matter, other than those specified in clauses (a), (b) and (c), five hundred rupees:] Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4).
(7) An application for stay of demand shall be accompanied by a fee of five hundred rupees."
6.1 From the above, it is clear that no power to entertain the appeals against the order passed under section 271FA, has been provided to the Tribunal. Therefore, the appeals cannot be entertained by the Tribunal. On the other hand, the powers have been given to the CIT(A) under section 246A(1)(q), which reads as under:
Sec. 246A(1)(q) : "An assessee aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) against:8
" an order imposing a penalty under Chapter XXI"
6.2. In view of the clear provisions of section 246A(1)(q) of the Act, an appeal against the order passed under Chapter XXI can be preferred before the CIT(A). The provisions of section 271FA falls under the Chapter XXI of the Act. Thus, in view of the clear and unambiguous provisions of the Act, these appeals cannot be admitted by us, particularly, when we have no jurisdiction under the law to entertain such appeals. Consequently, we dismiss all the appeals, for want of jurisdiction.
7. However, it is made clear that the assessee is free to prefer appeals against the order of the Director of Income-tax (CIB), Chandigarh, in right forum, if so advised.
8 In the result, all the appeals filed by the assessee are dismissed.
Decision pronounced in the open court on 17th June, 2011.
Sd/- Sd/-
(MEHAR SINGH) (H.L. KARWA)
ACCOUNTANT MEMBER VICE PRESIDENT
Dated: 17th June, 2011
/SKR/
Copy of the order is forwarded to :
1. The Assessee:Sub-Registrar, Tehsil Office, Nakodar.
2. The Director of Income-tax (CIB), Chandigarh.
3. The SR DR True copy By Order (Assistant Registrar) Income Tax Appellate Tribunal Amritsar Bench : Amritsar.
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