Income Tax Appellate Tribunal - Chandigarh
Sub Registrar/Jt. Sub Registrar, Dhuri vs Assessee on 14 September, 2016
IN THE INCOME TAX APPELLATE TRIBUNAL
'SMC' BENCH, CHANDIGARH
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
ITA Nos. 440 to 442 & 444/CHD/2016
A.Y: 2005-06,2006-07,2009-10 & 2008-09
Sub Registrar/Jt. Sub Registrar, Vs The DIT (CIB),
Dhuri. Chandigarh.
TAN: JLDS08157C
(Appellant) (Respondent)
Appellant by : Shri Sudhir Sehgal
Respondent by : Shri S.K.Mittal,DR
Date of Hearing : 24.08.2016
Date of Pronouncement : 14.09.2016
O R D E R
All the appeals by assessee are directed against common order of ld. CIT(Appeals)-2, Ludhiana dated 04.01.2016 for above assessment years challenging the levy of penalty under section 271FA of the Income Tax Act.
2. I have heard ld. Representatives of both the parties and perused the findings of authorities below.
3. According to the office, all the appeals of the assessee are time barred by 10 days. The assessee filed application for condonation of delay explaining therein 2 that the Sub Registrar Shri Dalbir Bhardwaj had been suffering from depression/blood pressure for the last some months and doctor had advised him bed ret on account of above reasons, therefore, appeals could not be filed within time. Certificate of the doctor is filed. The assessee, therefore, prayed that delay in filing appeals may be condoned. The ld. DR did not object to the same. Considering explanation of the assessee and material on record, I am satisfied that assessee was prevented by sufficient cause from filing the appeals within the period of limitation. The delay in filing the appeals is, therefore, condoned.
4. Brief facts of the case are that as per provisions of Section 285BA of the Act, the Sub Registrar (assessee) was required to file Annual Information Returns for the financial year under appeals for his jurisdiction. The assessee had failed to file the AIR on time and delayed by number of days as have been mentioned in the impugned orders. The Assessing Officer noted in the penalty order that Joint Sub Registrar appeared for the assessee and filed proof of mailing application for allotment of TAN and request for further time to file the returns after allotment of TAN. Later on, Naib Tehsildar appeared and furnished proof regarding filing of the AIR information which was found to be late. The Assessing Officer accordingly, levied the penalty under the above provisions.
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5. The assessee submitted before ld. CIT(Appeals) that delay in filing the return for assessment years above was due to lack of knowledge and preparation of details and particulars required for filing the return, as it was new duty for him. The assessee further explained that newly appointed clerk on concerned duty, under bonafide belief and having rush of work could not file the said returns on time. There is no tax liability upon the assessee. The ld. CIT(Appeals), however, dismissed the appeal of the assessee. The ld. CIT(Appeals) also noted that appeals are time barred and no request for condonation of delay have been made in this regard. Therefore, appeals of the assessee were dismissed.
6. The ld. counsel for the assessee, at the outset, submitted that on the same facts and circumstances, ITAT (SMC) Bench in the group cases of various Sub Registrars/Joint Sub Registrars, Amargarh, Dhuri and Malerkotla in ITA 406/2016 & others vide order dated 01.08.2016 restored the matter in issue to the file of Assessing Officer with direction to re-decide this issue in accordance with law. Copy of the order is placed on record and provided to ld. DR. He has, therefore, submitted that issue on identical facts is covered by above order of the Tribunal, therefore, these appeals may also be restored to the file of Assessing Officer for re-consideration. The ld. DR, however, relied upon 4 orders of the authorities below and submitted that appeals of the assessee may be dismissed.
7. After considering rival submissions, I find that identical issue was considered by ITAT 'SMC' Bench in the case of Sub Registrar/Joint Sub Registrar, Amargarh etc. V DIT (CIB) Chandigarh etc. in group cases (supra) and vide order dated 01.08.2016, the identical matter in issue have been restored to the file of Assessing Officer for re-consideration. The findings of the Tribunal in para 5 to 6 of this order are reproduced as under :
"5. After considering the rival submissions, I am of the view the matter requires re-consideration at the level of the Assessing Officer. The assessee has made part compliance before Assessing Officer and according to Assessing Officer, the AIR returns are filed with delay. The ld. counsel for the assessee reiterated submissions made before ld. CIT(Appeals) and also submitted that the requisite infrastructure was not available with the assessee to file the AIR information online, therefore, returns were filed manually and this fact was explained to the Assessing Officer as well. He has submitted that even facts have not been taken into consideration and further, ld. CIT(Appeals) has not given any opportunity to file application for condonation of delay specifically. On going through the impugned order, it is clear that assessee made part compliance before Assessing Officer and ld. counsel for the assessee from the details submitted in the Paper Book explained that returns were filed manually belatedly because required infrastructure was not available with Sub Registrar to file returns online. Further, the order of the ld. CIT(Appeals) does not disclose if any opportunity was given to the assessee 5 to file application for condonation of delay. Further, when appeals have been decided on merits, it should not be later on dismissed being time barred in limine. The Assessing Officer did not consider that no loss to revenue have been caused. The explanation of the assessee before Assessing Officer/ld. CIT(Appeals) have not been specifically dealt with. Hon'ble Delhi High Court in the case of Woodward Governor India P.Ltd. V CIT & others 253 ITR 745 held as under :
" Levy of penalty under section 271C of the Income-tax Act, 1961, for failure to deduct tax at source, is not automatic. In order to bring in application of Section 271 C, in the backdrop of the overriding non obstante clause in section 273B, absence of reasonable cause, existence of which has to be established, is a sine qua non. Before levying penalty, the concerned officer is required to find out that even if there was any failure to deduct tax at source, the same was without reasonable cause. The initial burden is on the assessee to show that there exists reasonable cause which was the reason for the failure. Thereafter, the officer has to consider whether the explanation offered by the assessee or other person as regards the reason for failure, was on account of reasonable cause."
The assessee is able to explain prima-facie reasonable cause and therefore, assessee was required to file some evidence or material alongwith the same. Since the assessee is a government agency therefore, one more chance should be given to the assessee to prove reasonable cause before the Assessing Officer. Therefore, in my view the matter requires re- consideration at the level of the Assessing Officer. I, accordingly, set aside the orders of authorities below and restore the matter in issue to the file of Assessing Officer with direction to re-decide this issue in accordance with law by giving reasonable sufficient opportunity of being heard to the assessee. The assessee may produce adequate evidence or material before Assessing Officer in support of the contention to establish reasonable cause as per law.
6. In the result, all appeals of the assessee are allowed for statistical purposes."
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8. I, therefore, following the above order in the case of Sub Registrar/Joint Sub Registrar, Amargarh etc. (supra), find that the issue is identical, therefore, following the reasons for decision in the above case, I set aside the orders of authorities below and restore the matter in issue to the file of Assessing Officer with direction to re-decide this issue in accordance with law by giving reasonable sufficient opportunity of being heard to the assessee. The assessee may produce adequate evidence or material before Assessing Officer in support of the contention to establish reasonable cause as per law.
9. In the result, all appeals of the assessee are allowed for statistical purposes.
Order pronounced in the Open Court.
Sd/-
(BHAVNESH SAINI) JUDICIAL MEMBER Dated : 14 t h September,2016.
'Poonam' Copy to:
The Appellant, The Respondent, The CI T(A), The CI T,DR Assistant Registrar, I TAT Chandigarh