Income Tax Appellate Tribunal - Amritsar
Director Of Income-Tax,, Distt. ... vs Department Of Income Tax on 29 July, 2013
1 ITA No.300(Asr)/2012
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH; AMRITSAR.
BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER
AND SH. B.P.JAIN, ACCOUNTANT MEMBER
I.T.A. No. 300(Asr)/2012
Assessment year:2008-09
PAN :ABQPS0942J
The Joint Sub Registrar, vs. Director of Income Tax (CIB)
Fatehgarh Churian, Chandigarh.
Distt. Gurdaspur.
(Appellant) (Respondent)
Appellant by:None
Respondent by:Sh.Amrik Singh, DR
Date of hearing: 29/07/2013
Date of pronouncement:07/08/2013
ORDER
PER BENCH ;
This appeal of the assessee arises from the order of the CIT(A), Amritsar, dated 22.05.2012 for the assessment year 2008-09. The assessee has raised following grounds of appeal:
"1. That the order of the Ld. CIT(A) confirming the penalty of Rs.36,800/- levied under section 271FA of the I.T.Act,1961 in connection with A.Y. 2008-09, is illegal, invalid and void ab initio and the penalty levied may be cancelled.2 ITA No.300(Asr)/2012
2. That the ld. CIT(A) did not appreciate that no reasonable opportunity of being heard was allowed and as such the order of Ld. CIT(Appeals) thereby confirming the penalty is liable to be cancelled.
3. That the authorities below did not appreciate that this case does not fall within the mischief of section 271FA of the Act and as such the order levying penalty of Rs.36,800/- u/s 271FA should have been cancelled.
4. That the Ld. CIT(A) has miserably failed to appreciate that the filler was innocent and was unaware of the implication of provisions of section 285BA of the Act and as such there was reasonable and sufficient cause for not complying with the provisions of section 285BA of the Act. As such the ld. CIT(A) should have cancelled the penalty levied u/s 271FA of the Act as there was reasonable and sufficient cause which prevented the filler from complying with the provisions of law.
5. That the filler filed the return voluntarily and the order levying penalty u/s 271FA of the Act is bad in law and is liable to be cancelled.
6. That the Ld. CUT(A) did not appreciate that it was a technical default for which no penalty should have been levied. As such, the order confirmed by the ld. CIT(A) may be cancelled.
7. Any other ground of appeal which may be urged at the time of hearing of the appeal."
2. The brief facts are that the assessee was required to file annual information return for the impugned year in respect of specified financial transactions in Form No.61A as per Rule 116E of Income Tax Rules, 1962 in respect of transactions of purchase or sale of immovable property valued at Rs.30 lakhs or more on or before the due date for filing the annual information return on 31st August,2008, which in fact, was filed on 03.09.2009 late by 368 days. As observed by the A.O., the assessee has filed return for the financial year 2004-05 on 28.02.2006, for the financial 3 ITA No.300(Asr)/2012 year 2005-06 on 17.7.2007 and for the financial year 2006-07 on 31.8.2007.
A show cause was given to the assessee, which was rejected by the A.O. vide para 7 of his order. The said para for the sake of convenience is reproduced as under:
"7. I have carefully considered the contentions of the Filer and perused the relevant record. The explanation of the Filer is not acceptable due to the following:
i) The plea taken by the Filer that the AIRs were filed with the ITO Pathankot from time to time is not acceptable because the ITO, Pathankot is not the prescribed authority to receive the AIRs. These are required to be furnished with NSDL. The Filer itself has submitted the returns with the NSDL and the delay as mentioned in the following paragraphs has been computed with reference to the dates of submissions of AIRs with NSDL.
Furthermore this plea of the filer is not supported by any documentary evidence that it has been filing the AIR with ITO Pathankot due to ignorance. Therefore, the explanation offered is of no help to the Filer.
ii) Frequent transfers of Tehsildar/Nain Tehsildars is not something this office can help. In any case the preparation and submission of AIR is to be done by 31st August of the subsequent year, therefore, the Filer gets full 5 months to do so. Even if there is frequent transfer of officers the AIR could have been filed in these 5 months or with the little bit of delay. Moreover, even if there is a frequent transfer of Tehsildars/Naib Tehsildars the office staff is always in a position to prepare and submit the AIR. Still further the work of registration of properties and other administrative jobs can be done, even with the frequent transfers of officers, there is no reason why the filing of AIR which is only required to be done annually, cannot be done in time.
iii) Therefore, the explanation filed by the Filer is not acceptable on both counts."
4 ITA No.300(Asr)/20122.1. Accordingly, the AO levied penalty under section 271FA being the rate of Rs. 100/- per day of the default at Rs.36,800/-. The said penalty was confirmed by the ld. CIT(A).
3. None appeared on behalf of the assessee inspite of valid service of notice. However, we are proceeding to decide the issue on the basis of material available on record and after hearing the ld. DR.
4. The Ld. DR argued that the present issue is identical to the issue decided in the case of The Sub Registrar, Bariwala, Distt. Muktsar and others vs. Director of Income Tax (CIB), Chandigarh, which has been decided by the ITAT, Amritsar Bench vide order dated 30/05/2013 in I.T.A. Nos.137 to 140(Asr)/2013 for the Assessment years:2006-07 to 2009- 2010. Therefore, he prayed to decide the issue being on identical facts in the present appeal, on the basis of the decision of ITAT, Amritsar Bench in the case of The Sub Registrar, Bariwala, Distt. Muktsar and others vs. Director of Income Tax (CIB), Chandigarh (supra).
5. We have heard the rival contentions and perused the facts of the case.
The facts in the present appeal are identical to the facts in the case of The Sub Registrar, Bariwala, Distt. Muktsar and others vs. Director of Income Tax (CIB), Chandigarh, (supra), which has been decided by this Bench in I.T.A. Nos.137 to 140(Asr)/2013 for the Assessment years:2006-07 to 2009- 5 ITA No.300(Asr)/2012 2010, vide order dated 30/05/2013 and our order therein shall identically be applicable in the present appeal. For the sake of convenience, we reproduce the relevant part of the said order in para 15 to 15.6 as under:
"15. We have heard the rival contentions and perused the facts of the case. In the present case, the main argument of the ld. counsel for the assessee, Mr. P.N.Arora was that the assessee was ignorant of law i.e. about section 285BA of the Act. He argued that the Income Tax Authority has not served any notices on the assessee and when the notice was served, the assessee filed the annual information return (In short 'AIR') and no penalty should be accordingly levied upon the assessee. In this regard, we are of the view on perusal of section 285BA of the Act, which was introduced by the Finance (No.2) Act, 2004 w.e.f.1.4.2005, it is not the case that this section has been introduced for the first time by Finance (No.2) Act, 2004. Prior to its substitution, section 285BA was inserted by the Finance Act, 2003 w.e.f. 1.4.2004, where any assessee who enters into any financial transaction, as may be prescribed, with any other person, shall furnish, within the prescribed time, an annual information return in such form and manner, as may be prescribed in respect of such financial transaction entered into by him during any previous year. Rule 114A to 114E prescribes such return to be furnished in Form No.61A and shall be verified in the manner indicated therein. At item No.6 of the said Rule, return shall be furnished on or before 31st August, immediately following the financial year in which the transaction is registered or recorded. Section 285BA(5) is reproduced for the sake of clarity as under:
Section 285BA(5) Where a person who is required to furnish an annual information return under sub-section (1) has not furnished the same within the prescribed time, the prescribed income-tax authority may serve upon such person a notice requiring him to furnish such return within a period not exceeding sixty days from the date of service of such notice and he shall furnish the annual information return within the time specified in the notice.] 15.1. The Ld. counsel for the assessee has taken the shelter of section 285BA(5) of the Act, which is reproduced hereinabove that the 6 ITA No.300(Asr)/2012 Income Tax Authority are under a mandate to serve the notice to the assessee in case annual information return is not filed for years together after insertion of the section by the Finance (No.2) Act, 2003 w.e.f. 1.4.2004 initially and thereafter by Finance (No.2) Act, 2004 w.e.f. 1.4.2005 mentioned hereinabove. Whereas this is not a case, the words used by the statute in section 285BA(5) gives option for the Income Tax Authority to serve notice which may or may not be served upon. The word 'may' used in section 285BA(5) clearly indicates the option for the Income Tax Authority. It is not obligatory on the Income Tax Authority to serve such notice. Therefore, interpretation has to be strictly construed. There is no ambiguity in the same. The courts cannot add or amend and by construction cannot make up the deficiencies in the Act. It is contrary to all rules of construction unless the provision as it stands is meaningless or having a doubtful meaning. We are not entitled to usurp legislative function disguise of interpretation. The courts are meant to interpret law, cannot legislate it. Our views find supports from the judgment of Hon'ble Supreme Court in the case of Union of India And Others vs. Dharmendra Textiles Processors And Others reported in (2008) 306 ITR 277. In the present case, issuance and service of notice under section 285BA(5) is not obligatory on the Income Tax Authority. Therefore, arguments made by the Ld. counsel for the assessee, Mr. P.N.Arora, are rejected to this extent.
15.2. As regards the notice dated 20.11.2006 issued by CIT (CIB), Chandigarh to the assessee, it is surprising that how the said notice has been in the possession of the assessee. Nothing has been brought on record by the ld. counsel for the assessee in this respect.
Reasonable presumption is made that this notice has also been served upon the assessee dated 20.11.2006 and which has not been complied with. As per remand report, as argued by the ld. DR and also record of DIT(CIB) which has been verified by the ld. counsel that various notices have been served i.e. on 20.11.2006, 04.04.2007, 11.01.2008, 12.12.2008, 21.05.2009, 20.01.2010 & 12.03.2010. All the said seven notices remained un-complied with, at the last known address given by the assessee which is as under:
Sub Registrar Bariwala Muktsar 7 ITA No.300(Asr)/2012 15.3. Penalty order dated 22.12.2010 has been served on the assessee is not in dispute against which the assessee filed appeal on 31.01.2011 before the ld. CIT(A), Bathinda. The Ld. CIT(A)'s order dated 14.12.2012 has also been served upon the assessee on 09.01.2013 at the same address has also not been disputed by the ld.
counsel for the assessee. Therefore, the arguments made by the Ld. counsel for the assessee that one notice dated 20.11.2006 having mentioned wrong District is part of the paper book cannot prove that the notice dated 20.11.2006 and other six notices as mentioned hereinabove have not been issued and served on the assessee. Therefore, the argument of the ld. counsel for the assesse is rejected that no notice u/s 285BA(5) has been issued/served upon the assessee even in remand proceedings when all notices were confronted. Therefore, the reliance placed by the ld. counsel for the assessee on the decisions of various courts of law on service of notice cannot be made applicable in the present case and cannot help the assessee. 15.4. As regards the decision of the Hon'ble Gujarat High Court in the case of Patan Nagrik Sahakari Bank Ltd. vs. Director of Income Tax (supra), the ld. CIT(A) has taken full cognizance of the said decision and has directed the CIT(CIB) to recompute the default w.e.f. 01.12.2006 instead of 31.08.2006 for the assessment year 2006-07 and thereafter in the following years has rightly confirmed the default being the first advisory letter issued on 20.11.2006 in view of our findings hereinabove.
15.5. As regards the reasonable cause, as mentioned hereinabove, the Ld. CIT(A) has taken cognizance in the case of Patan Nagrik Sahakari Bank Ltd. vs. Director of Income Tax (supra), decided by the Hon'ble Gujarat High Court. But at the same time, we may refer that ignorance of law is not an excuse, as per our findings hereinabove and also as per decision of the Hon'ble Gujrat High Court in the case of Pattan Nagrik Sahakari Bank Ltd. (supraand the Sub Registrar cannot be an exception to the law laid down by the Hon'ble Supreme Court mentioned hereinabove. It is settled law that ignorance of law is of no excuse, as decided by the Hon'ble Supreme Court in the case of MotiLal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh & Ors reported in (1979) 118 ITR 326 (SC).
15.6. In view of the above discussions, all the grounds raised by the assessee in ITA Nos. 137 to 140(Asr)/2013 are dismissed."
8 ITA No.300(Asr)/20126. In view of our findings hereinabove and our decision in I.T.A. Nos.137 to 140(Asr)/2013 for the Assessment years:2006-07 to 2009-2010 (supra) reproduced hereinabove, which decision is identically applicable in the present appeal and accordingly all the grounds raised by the assessee in the present appeal are dismissed.
7. In the result, the appeal filed by the assessee in ITA No.300(Asr)/2012 is dismissed.
Order pronounced in the open court on 7th August, 2013.
Sd/- Sd/-
(H.S. SIDHU) (B.P. JAIN)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 7th August, 2013
/SKR/
Copy of the order forwarded to:
1. The Assessee:The Sub Registrar, Fatehgarh Churian, Distt.
Gurdiaspur.
2. The Director of Income (CIB), Chandigarh.
3. The CIT(A), Asr.
4. The CIT, Asr.
5. The SR DR, ITAT, Amritsar.
True copy By order (Assistant Registrar) Income Tax Appellate Tribunal, Amritsar Bench: Amritsar.