The Sub Registrar, Kurukshetra V. Director of Income Tax (CIB), Chandigarh

ITA 112/CHANDI/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73552 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 19-03-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 30-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Period of limitation; Reasonable cause
• Section: 273B; 133(6); 6; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS.112 TO 115 /CHD/2012 ASSESSMENT YEARS : 2005-06,2006-07,2008-09 & 2009-1 0 THE SUB REGISTRAR VS. DIRECTOR OF INCOME TAX (CI B), G.T.ROAD, SHAHBAD MARKANDA, CHANDIGARH. KURUKSHETRA. PAN: RTKS11609D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SHRI AKHILESH GUPTA, DR DATE OF HEARING : 19.03.2014 DATE OF PRONOUNCEMENT : 24.03.2014 O R D E R PER SUSHMA CHOWLA, J.M. : THIS BUNCH OF FOUR APPEALS FILED BY THE ASSESSEE AR E AGAINST THE CONSOLIDATED ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS), KARNAL DATED 17.10.2011 AGAINST THE PENALTY LELVIED UNDER SECTION 271FA OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING COMMON GRO UNDS IN ALL THE APPEALS: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE PENALTY OF RS.62,200/- ( RS.34,800/- IN ITA NO.113/CHD/2012, RS.37,900/- IN ITA NO.114/CHD/2012 & RS.8000/- IN ITA NO.115/CHD/20912) IMPOSED UNDER SECTION 271FA OF THE ACT WHICH IS ARB ITRARY & UNJUSTIFIED. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS FAILED TO APPRECIATE THE 2 REASONABLE CAUSE PLEADED BEFORE HIM AND AS SUCH THE PENALTY UPHELD IS ARBITRARY & UNJUSTIFIED. 3. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF THE CASE AND IS, THUS, UNTENABLE. 3. COMMON GROUNDS OF APPEAL HAVE BEEN RAISED IN ALL THE CAPTIONED APPEALS AND WE PROCEED TO DECIDE THE PRESENT BUNCH OF APPEALS BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 4. THE ONLY ISSUE RAISED BEFORE US IS AGAINST THE UPHOLDING OF PENALTY IMPOSED UNDER SECTION 271FA OF THE ACT BY THE CIT (APPEALS). 5. THE BRIEF FACTS OF THE CASE ARE THAT UNDER SECTI ON 285 BA(1) OF THE ACT CERTAIN PERSONS ARE REQUIRED TO FILE AN ANNUAL INFORMATION RETURN (AIR) IN RESPECT OF SPECIFIED FINANCIAL TRANSACTION S REGISTERED OR RECORDED BY HIM DURING THE FINANCIAL YEAR. THE NAT URE OF THE TRANSACTIONS AND THE THRESHOLD VALUE FOR INFORMATIO N 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 RETU RN IS REQUIRED TO BE FILED IS FORM NO.61A. THE CENTRAL BOARD OF DIRECT TAXES HAS AUTHORIZED M/S NATIONAL SECURITIES DEPOSITORIES LTD. (NSDL) AS THE AGENCY AUTHORIZED TO RECEIVE AIRS ON BEHALF OF THE COMMISS IONER OF INCOME TAX (CENTRAL INFORMATION BRANCH). THE FILER CAN ALSO F URNISH THE AIR WITH THE FACILITATION CENTRES OF NSDL, LOCATED IN DIFFER ENT PARTS OF THE COUNTRY. ITEM NO.6 OF THE TABLE IN RULE 114E SPECI FIES THAT THE REGISTRAR OR SUB-REGISTRAR APPOINTED UNDER SECTION 6 OF THE REGISTRATION ACT, 1908 IS REQUIRED TO FILE AIR IN RESPECT OF TRA NSACTIONS OF PURCHASE OR SALE BY ANY PERSON OF IMMOVABLE PROPERTY VALUED AT THIRTY LAKHS RUPEES OR MORE. THE DUE DATE FOR FILING THE AIR IS THE 31 ST AUGUST IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH T HE TRANSACTION IS 3 REGISTERED OR RECORDED. IN THE EVENT OF FAILURE TO FURNISH THE AIR, PENALTY IS LEVIABLE UNDER SECTION 271FA OF THE ACT. 6. THE SUB REGISTRAR, SHAHBAD, MARKANDA FURNISHED T HE ANNUAL INFORMATION RETURNS IN THE CAPTIONED ASSESSMENT YEA RS LATE AND CONSEQUENTLY PENALTY UNDER SECTION 271FA OF THE ACT WAS IMPOSED BY THE ASSESSING OFFICER AT RS.62,200/- FOR ASSESSMENT YEA R 2005-06, AT RS.34,800/- FOR ASSESSMENT YEAR 2006-07, AT RS.37,9 00/- FOR ASSESSMENT YEAR 2008-09 AND AT RS.8000/- FOR ASSESSMENT YEAR 2 009-10. THE CIT (APPEALS) IN TURN RESTRICTED THE PENALTY UNDER SECT ION 271FA OF THE ACT BY CONDONING THE DELAY UPTO 30.11.2006 AS THE INCOM E TAX DEPARTMENT HAD ISSUED THE FIRST NOTICE ON 21.11.2006 AND PENAL TY UNDER SECTION 271FA OF THE ACT FOR FINANCIAL YEARS 2004-05 AND 20 05-06 WAS THUS REDUCED BUT THE SAME WAS CONFIRMED IN THE FINANCIAL YEARS 2007-08 AND 2008-09. 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF T HE CIT (APPEALS). THE LEARNED A.R. FOR THE ASSESSEE POINTED OUT THAT THE ISSUE IS SQUARELY COVERED BY THE RATIO LAID DOWN BY THE TRIBUNAL IN I TA NOS.674 TO 679/CHD/2012, WHICH IN TURN HAD FOLLOWED THE EARLIE R DECISION IN ITA NOS.431 TO 434/CHD/2012- ORDER DATED 30.10.2013. THE TRIBUNAL IN ITA NOS.431 TO 434/CHD/2012 HAD HELD AS UNDER: 23. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. SECTION 285BA OF THE ACT PRESCRIBED AN OBL IGATION TO FURNISH ANNUAL INFORMATION REPORT BY THE PRESCRIBED PERSON FOR THE SPECIFIED TRANSACTION WITHIN STIPULATED TIM E. THE SUB REGISTRAR IN VIEW OF THE PROVISIONS OF SECTION 285B A OF THE ACT IS REQUIRED TO FILE ANNUAL INFORMATION REPORT IN RE SPECT OF THE TRANSACTION OF PURCHASE AND SALE BY ANY PERSON OF IMMOVABLE PROPERTY VALUED AT RS.30 LACS OR MORE. THE DUE DAT E FOR FILING THE SAID AIR INFORMATION IN FORM NO.61A IS 31 ST AUGUST IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH T HE TRANSACTION WAS REGISTERED OR RECORDED. THE ONUS I S UPON THE ASSESSEE TO FURNISH THE SPECIFIED INFORMATION UNDER SECTION 285BA OF THE ACT. 4 24. COMING TO THE PROVISIONS OF SECTION 285BA OF TH E ACT, THE SUB-SECTION (1) PROVIDES THE LIST OF PERSONS WH O ARE REQUIRED TO FURNISH THE ANNUAL INFORMATION RETURN I N RESPECT OF FINANCIAL TRANSACTIONS WHICH ARE REGISTERED OR R ECORDED DURING THE FINANCIAL YEAR BEGINNING ON OR AFTER 1 ST DAY OF APRIL, 2004. SUCH INFORMATION IS TO BE FURNISHED T O THE PRESCRIBED INCOME TAX AUTHORITY I.E. THE DIRECTOR O F INCOME TAX (CENTRAL INFORMATION BRANCH) OR THE AUTHORITY/A GENCY PRESCRIBED UNDER THE ACT I.E. NSDL. THE ANNUAL INF ORMATION RETURN REFERRED TO IN SUB-SECTION (1) TO SECTION 28 5BA OF THE ACT, AS PER SUB-SECTION (2) IS TO BE FURNISHED ON O R BEFORE 31 ST AUGUST IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH THE TRANSACTION WAS REGISTERED OR RECORDED, IN FORM NO. 61A, AS PRESCRIBED UNDER RULE 114E OF THE INCOME TAX RULES. SUB- SECTION (3) DEFINES SPECIFIED FINANCIAL TRANSACTION , WHICH MAY BE PRESCRIBED UNDER THE ACT. THE BOARD HAS GIVEN A UTHORITY TO PRESCRIBE DIFFERENT VALUES FOR DIFFERENT TRANSACTIO NS IN RESPECT OF DIFFERENT PERSONS, HAVING REGARD TO THE NATURE O F SAID TRANSACTION. UNDER SUB-SECTION (4) WHERE THE PRESC RIBED INCOME TAX AUTHORITY CONSIDERS THE ANNUAL INFORMATI ON RETURN FURNISHED UNDER SUB-SECTION (1) TO BE DEFECTIVE, TH EN SUCH DEFECTS ARE TO BE INTIMATED TO THE PRESCRIBED PERSO N AND AN OPPORTUNITY IS TO BE ALLOWED FOR RECTIFYING THE SAM E WITHIN THE SPECIFIED/ EXTENDED PERIOD. IN CASE SAID DEFECTS A RE NOT REMOVED WITHIN THE PRESCRIBED OR EXTENDED PERIOD TH EN SUCH RETURNS WOULD BE TREATED AS AN INVALID RETURN AND T HE PROVISIONS OF THE ACT WOULD APPLY AS IF THE PERSON HAD FAILED TO FURNISH THE ANNUAL INFORMATION RETURN. UNDER SU B-SECTION (5) WHERE THE PRESCRIBED PERSON HAS NOT FURNISHED A NNUAL INFORMATION RETURN WITHIN THE PRESCRIBED TIME, THE PRESCRIBED INCOME TAX AUTHORITY MAY SERVE UPON SUCH PERSON NOT ICE REQUIRING HIM TO FURNISH SUCH RETURN WITHIN A PERIO D NOT EXCEEDING SIXTY DAYS. 25. UNDER THE PROVISIONS OF SECTION 271FA OF THE AC T, PENALTY IS IMPOSABLE IN THE EVENT OF THE PERSON RES PONSIBLE HAVING FAILED TO FURNISH THE AIR INFORMATION UNDER SECTION 285BA OF THE ACT. SECTION 271 FA OF THE ACT READS AS UNDER: [ PENALTY FOR FAILURE TO FURNISH ANNUAL INFORMATION R ETURN. 271FA. IF A PERSON WHO IS REQUIRED TO FURNISH AN ANNUAL IN FORMATION RETURN, AS REQUIRED UNDER SUB-SECTION (1) OF SECTION 285BA , FAILS TO FURNISH SUCH RETURN WITHIN THE TIME PRESCRIBED UNDER THAT SUB-SECTION, THE INCOME-TAX AUTHORITY PRESCRIBED UNDER THE SAID SUB-SECTION MAY DIRECT TH AT SUCH PERSON SHALL PAY, BY WAY OF PENALTY, A SUM OF ONE HUNDRED RUPEES FOR EVE RY DAY DURING WHICH THE FAILURE CONTINUES.] 26. READING THE PROVISIONS OF SECTION 285BA AND THE RELEVANT PROVISIONS OF SECTION 271FA OF THE ACT, IT TRANSPIR ES THAT WHERE THE PRESCRIBED PERSON IS REQUIRED TO FURNISH THE AI R AND FAILS TO FURNISH THE SAME WITHIN THE PRESCRIBED TIME, THEN S UCH PERSON COULD BE HELD TO BE LIABLE TO LEVY OF PENALTY EQUIV ALENT TO 5 RS.100/- FOR EVERY DAY OF DEFAULT. THE ABOVE SAID PROVISIONS WERE INSERTED BY THE FINANCE (NO.2) ACT 2004 W.E.F. 1.4.2005. UNDER THE PROVISIONS OF SECTION 273B OF THE ACT, TH E PENALTY LEVIABLE UNDER VARIOUS SECTIONS IS NOT TO BE IMPOSE D, WHERE THE PERSON PROVES THAT THERE WAS REASONABLE CAUSE FOR T HE SAID FAILURE/DEFAULT. THE LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT IS ALSO COVERED WITHIN THE PROVISIONS OF SECTIO N 273B OF THE ACT. IT THUS IMPLIES THAT IN EACH CASE OF DEFAULT UNDER SECTION 271FA OF THE ACT, THE LEVY OF PENALTY IS NOT COMPUL SORY AND THE SAME IS NOT IMPOSABLE IF THE PERSON SATISFIES THE C ONDITIONS PRESCRIBED UNDER SECTION 273B OF THE ACT. 27. WE FIND THAT THE ISSUE OF LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT AROSE BEFORE THE HON'BLE GUJARAT H IGH COURT IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CIB) VS. DIRECTOR OF INCOME-TAX (CIB) [338 ITR 167 (GUJ)] WHEREIN IT HAS BEEN OBSERVED AS UNDER: SECTION 285BA OF THE ACT IMPOSES AN OBLIGATION UPO N ANY PERSON, BEING AN ASSESSEE, WHO IS RESPONSIBL E FOR REGISTERING OR MAINTAINING BOOKS OF ACCOUNT OR OTHE R DOCUMENTS CONTAINING A RECORD OF ANY SPECIFIED FINA NCIAL TRANSACTION, UNDER ANY LAW FOR THE TIME BEING IN FO RCE, TO FURNISH AN ANNUAL INFORMATION RETURN, IN RESPECT OF SUCH SPECIFIED FINANCIAL TRANSACTION WHICH IS REGISTERED OR RECORDED BY HIM DURING ANY FINANCIAL YEAR BEGINNING ON OR AFTER THE APRIL 1, 2004, AND INFORMATION RELATIN G TO WHICH IS RELEVANT AND REQUIRED FOR THE PURPOSES OF THE ACT TO THE PRESCRIBED INCOME-TAX AUTHORITY OR SUCH OTHER AUTHORITY OR AGENCY AS MAY BE PRESCRIBED. SUCH ANNU AL INFORMATION REPORT IS REQUIRED TO BE FURNISHED WITH IN THE PRESCRIBED TIME AFTER THE END OF THE FINANCIAL YEAR . SUB- SECTION (5) OF SECTION 285BA OF THE ACT LAYS DOWN T HAT 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 D ATE OF SERVICE OF SUCH NOTICE AND HE SHALL FURNISH THE ANN UAL INFORMATION RETURN WITHIN THE TIME SPECIFIED IN THE NOTICE. 28. THE HON'BLE COURT FURTHER HELD THAT WHERE THE P ETITIONER HAD MADE OUT A REASONABLE CAUSE FOR NOT FILING THE PRESCRIBED AIR RETURN WITHIN THE PRESCRIBED PERIOD OF LIMITATI ON, IT WOULD BE REASONABLE TO BELIEVE THAT THE PETITIONER WAS NO T AWARE OF THE PROVISIONS OF SECTION 285BA OF THE ACT. THE HO N'BLE COURT FURTHER OBSERVED THAT WHERE THE PERSON HAD NOT FURN ISHED THE AIR RETURN UNDER SECTION 285BA(1) OF THE ACT, SUB-S ECTION (5) THEREOF LAYS DOWN THAT PRESCRIBED INCOME TAX AUTHOR ITY MAY SERVE UPON SUCH PERSON A NOTICE REQUIRING HIM TO FU RNISH SAID RETURN WITHIN THE SPECIFIED PERIOD NOT EXCEEDING 60 DAYS FROM THE DATE OF SERVICE OF SUCH NOTICE. THE HON'BLE CO URT CONCLUDED BY HOLDING THAT UPON SUCH NOTICE BEING SE RVED, THE PETITIONER CAN NO LONGER PLEAD THAT IT WAS UNAWARE OF THE 6 STATUTORY PROVISIONS OR ITS OBLIGATIONS UNDER THE S AME. THE HON'BLE COURT THUS HELD THAT THE ASSESSEE IN SUCH CIRCUMSTANCES COULD NOT BE SAID TO HAVE ANY REASONA BLE CAUSE FOR NOT FILING THE ANNUAL INFORMATION RETURN WITHIN THE PERIOD OF 60 DAYS OF SERVICE OF THE SAID NOTICE. THE HON' BLE COURT OBSERVED THAT HOWEVER, MERELY BECAUSE THE PETITIONE R HAS NOT IMMEDIATELY TAKEN STEPS AFTER THE ISSUANCE OF THE F IRST NOTICE ON DECEMBER 17, 2008, IT CANNOT BE SAID THAT THE RE ASONABLE CAUSE MADE OUT BY THE PETITIONER IN RESPECT OF THE PERIOD PRIOR THERETO SHOULD NOT BE TAKEN INTO CONSIDERATION WHI LE CONSIDERING THE QUANTUM OF PENALTY TO BE IMPOSED U NDER SECTION 271FA OF THE ACT. HOWEVER, WITH EFFECT FROM THE DATE OF SERVICE OF THE NOTICE DATED DECEMBER 17, 2008, I SSUED UNDER SECTION 285BA(5) OF THE ACT, ANY DEFAULT ON THE PAR T OF THE PETITIONER WOULD BE VIEWED AS A CONSCIOUS DISREGARD OF ITS STATUTORY OBLIGATION AND AS SUCH, IN RESPECT OF THE PERIOD SUBSEQUENT THERETO, THE PETITIONER WOULD NOT BE ENT ITLED TO THE BENEFIT OF THE PROVISIONS OF SECTION 273B OF THE AC T. THIS VIEW FINDS SUPPORT IN THE DECISION OF THIS COURT IN THE CASE OF CIT V. KANUBHAI MULJIBHAI PATEL [2008] 306 ITR 179 (GUJ) O N WHICH RELIANCE HAS BEEN PLACED ON BEHALF OF THE PETITIONE R. 29. THE HON'BLE SUPREME COURT IN MOTILAL PADAMPAT S UGAR MILLS CO.LTD. VS. STATE OF UTTAR PRADESH & OTHERS [118 ITR 326(S.C.)] HAD HELD THAT THERE IS NO PRESUMPTION TH AT EVERY PERSON KNOWS THE LAW. IT IS OFTEN SAID THAT EVERY ONE IS PRESUMED TO KNOW THE LAW, BUT THAT IS NOT A CORRECT STATEMENT: THERE IS NO SUCH MAXIM KNOWN TO THE LAW. WITHOUT G OING INTO THE FACTS OF THE CASE, WE ARE OF THE OPINION THAT S AME IS APPLICABLE ONLY TILL THE TIME THE SPECIFIED PERSON WAS MADE AWARE THROUGH THE NOTICE OF ITS OBLIGATION UNDER SE CTION 285BA OF THE ACT OR HAD BECOME AWARE ON ITS OWN NOT ION. HOWEVER, THE SITUATION WOULD CHANGE AFTER HAVING RE CEIVED THE NOTICE FOR FILING THE AIRS. THE SPECIFIED PERSON WA S WELL AWARE OF THE LEGAL POSITION AND ITS OBLIGATIONS. 30. IN THE FACTS OF THE PRESENT CASE AND AS REFERRE D TO BY US IN PARAS HEREINABOVE, THE CASE OF THE SPECIFIED PER SONS BEFORE US IS THAT THE PROVISIONS OF SECTION 285BA OF THE A CT BEING NEWLY INTRODUCED WERE NOT IN THEIR KNOWLEDGE AND BE CAUSE OF THE SAME THERE WAS DEFAULT IN COMPLIANCE TO THE SAI D PROVISIONS. WE FIND MERIT IN THE SAID PLEA THAT IN VIEW OF THE NEWLY INTRODUCED PROVISIONS OF SECTION 285BA OF THE ACT AND BECAUSE OF LACK OF KNOWLEDGE OF THE SAID PROVISIONS , THERE WAS DEFAULT IN FURNISHING THE PRESCRIBED INFORMATION BE FORE THE INCOME TAX AUTHORITIES. THUS, WE ARE OF THE VIEW T HAT NO PENALTY UNDER SECTION 271FA OF THE ACT IS LEVIABLE FOR THE PERIOD UPTO THE DATE OF FIRST NOTICE BY WHICH THE S PECIFIED PERSONS BECAME AWARE OF ITS OBLIGATIONS OR THROUGH ANY OTHER MODE, AS THERE WAS REASONABLE CAUSE FOR NOT FILING THE SAID INFORMATION IN TIME. HOWEVER, THE SAID PLEA OF NON- AWARENESS OF THE PROVISIONS OF THE ACT CANNOT BE PRESSED INTO SERVICE FOR THE PERIOD AFTER THE SAID DATE. FURTHER, THE PERSO N CANNOT TAKE SHELTER UNDER THE PLEA THAT IN THE ABSENCE OF ANY NOTICE ISSUED, IT WAS NOT AWARE OF ITS OBLIGATIONS, AS THE ONUS IS UPON THE PERSONS TO FURNISH THE INFORMATION. IN SUCH CAS ES, THE DATE 7 OF FIRST NOTICE OR DATE OF FURNISHING THE FIRST AIR UNDER SECTION 285BA OF THE ACT, WOULD BE THE DATE OF NOTICE. 31. THE SECOND PLEA RAISED BY THE LEARNED A.R. FOR THE ASSESSEE WAS THAT BECAUSE OF TECHNICAL AND VENIAL B REACH, NO PENALTY WAS IMPOSABLE, FOR WHICH RELIANCE WAS PLACE D ON HINDUSTAN STEEL LIMITED VS STATE OF ORISSA 83 ITR 2 6 (S.C) AND C.T.RAMANATHAN AND CO. VS ITO, 34 TTJ 125 (MAD) . 32. ON CONSIDERATION OF THE JUDGEMENTS, WE ARE OF T HE OPINION THAT FAILURE TO FILE REQUIRED PARTICULARS I N RESPECT OF TRANSACTIONS OF SALE VALUE OF RS. 30 LACS OR ABOVE UNDER SECTION 285BA OF THE ACT CANNOT BE TERMED MERELY BR EACH OF TECHNICAL NATURE BECAUSE ON THE BASIS OF SUCH INFOR MATION, THE REVENUE WOULD TAKE ACTION AGAINST SPECIFIED PERSONS I.E. PERSONS PURCHASING OR SELLING PROPERTIES IN VALUE E XCEEDING RS. 30 LACS AND IN THE ABSENCE OF SUCH INFORMATION, WHICH IS REQUIRED TO BE FILED BY SUB-REGISTRAR, THE DEPARTME NT CAN LOOSE HUGE REVENUE. THEREFORE, SUCH DEFAULT IS LEAD ING TO ENORMOUS CONSEQUENCES, WHICH CANNOT BE TERMED AS TE CHNICAL. 33. SECONDLY, IN ANY CASE, GUJRAT HIGH COURT IN PAT AN NAGRIK SAHAKARI BANK LTD. (SUPRA)HAS CONSIDERED THE DECISION OF HINDUSTAN STEEL LTD. VS STATE OF ORISSA [83 ITR 26(SC)] WHILE DEALING WITH THE ISSUE OF LEVY OF PENALTY UND ER SECTION 271FA OF THE ACT, WHICH IS IDENTICAL AND STILL HELD THE PENALTY TO BE LEVIABLE. WE FIND NO MERIT IN THE PLEA OF THE ASSESSEE IN THIS REGARD. 34. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN H.M. T. LTD. TRACTORS DIVISION VS CIT [ 274 ITR 544 (P&H) ] HAVE LAID DOWN THE PRINCIPLE THAT WHERE THE TAX AT SOURC E HAD BEEN PAID IN TIME AND THE NECESSARY RETURN IN RESPECT TH EREOF WAS FILED IN TIME WITH THE INCOME TAX DEPARTMENT, ON ME RE LATE ISSUE OF TAX DEDUCTION CERTIFICATE, THERE WAS NO LO SS TO THE REVENUE AND THE DELAY IN FURNISHING THE TAX DEDUCTI ON CERTIFICATE WAS MERELY TECHNICAL OR VENIAL IN NATUR E AND PENALTY COULD NOT BE IMPOSED. THE SAID DECISION CAN NOT BE APPLIED TO THE PRESENT ISSUE IN VIEW OF THE REASONS GIVEN ABOVE. 35. HOWEVER, IN THE FACTS OF THE PRESENT CASE, WHER E THE ASSESSEE FAILED TO FURNISH THE AIR WITHIN TIME, COU LD NOT BE SAID TO BE MERE TECHNICAL OR VENIAL BREACH. 36. THE NEXT PLEA RAISED BY THE ASSESSEE WAS THAT THERE WAS NO TAX INVOLVEMENT AND IT WOULD NOT MAKE ANY DIFFER ENCE IF THE RETURN WAS NOT SUBMITTED IN TIME DOES NOT STAND AS SIMILAR PLEA WAS RAISED BEFORE THE HON'BLE GUJARAT HIGH COU RT IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CIB) (SUPRA ) AND THE HON'BLE COURT OBSERVED AS UNDER: 'AS REGARDS THE CONTENTION THAT IN ANY CASE, THE RE VENUE HAD NO USE FOR THE ANNUAL INFORMATION RETURNS OF THE FINANCIAL YEAR 2006-07, WHEN THERE IS A STATUTORY OBLIGATION ON THE ASSESSEE TO FURNISH ANNUAL INFORM ATION RETURN, IT IS BOUND BY IT. HOW AND IN WHAT MANNER T HE INCOME-TAX AUTHORITIES MAKE USE OF THE SAID INFORMA TION IS NOT THE LOOK OUT OF THE PETITIONER. THE PETITION ER IS BOUND TO COMPLY WITH THE STATUTORY REQUIR EMENTS 8 AS PRESCRIBED, FAILING WHICH IT HAS TO FACE THE CONSEQUENCES OF SUCH FAILURE. BESIDES, AS RIGHTLY CONTENDED ON BEHALF OF THE REVENUE, ON ACCOUNT OF N OT PROVIDING INFORMATION IN TIME, THE REVENUE WAS NOT IN A POSITION TO TAKE REMEDIAL ACTION. 37. WE FURTHER FIND THAT THE AMRITSAR BENCH OF TRIB UNAL IN SUB REGISTRAR VS DIT (CIB) IN ITA NOS. 137 TO 140/A SR/2013 VIDE ORDER 30.05.2013 HAD APPLIED THE RATIO LAID DO WN BY THE HON'BLE GUJRAT HIGH COURT IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CIB) (SUPRA)AND HAD HELD THAT THE PER IOD OF PENALTY IS TO BE WORKED OUT FROM THE FIRST ADVISORY LETTER ISSUED TO THE ASSESSEE. THE PLEA OF IGNORANCE OF L AW MADE BY THE ASSESSEE THEREIN WAS REJECTED IN VIEW OF RATIO LAID DOWN BY THE HON'BLE GUJRAT HIGH COURT IN PATAN NAGRIK SAHAK ARI BANK LTD. VS DIT (CIB) (SUPRA). BUT THE PLEA OF REASONA BLE CAUSE FROM THE DATE OF ISSUE OF FIRST ADVISORY LETTER WAS ACCEPTED BY THE TRIBUNAL. 38. THE NEXT ISSUE RAISED BY THE LD. AR FOR THE ASS ESSEE BEFORE US IS IN RELATION TO THE FURNISHING OF INFOR MATION IN RESPECT OF THE TRANSACTIONS RELATING TO THE SALE AN D PURCHASE OF THE PROPERTY VALUED AT RS. 30 LACS OR ABOVE. TH E CASE OF THE ASSESSEE IS THAT IN THE ABSENCE OF THE AWARENES S OF THE PROVISIONS OF THE ACT AND ALSO AS NO TAN NUMBER WAS AVAILABLE WITH THE ASSESSEE, INFORMATION WAS FURNIS HED MANUALLY WITH THE CONCERNED OFFICERS OF THE DEPARTM ENT AND WHEN THE NOTICE WAS ISSUED BY THE SAID DEPARTMENT F OR FURNISHING THE REQUISITE INFORMATION. HOWEVER, THE INFORMATION WAS UPLOADED ON THE NSDL ON A LATER DAT E. THE PLEA OF THE ASSESSEE BEFORE US IS THAT SUCH INFORMA TION FURNISHED MANUALLY BE ACCEPTED AS DATE OF COMPLIANC E TO THE PROVISIONS OF SECTION 285BA OF THE ACT. ON THE PER USAL OF THE ORDERS PASSED BY THE DIT (CIB) IN ITA NOS. 431 TO 434/CHD/2012 I.E. IN THE CASE OF SUB REGISTRAR, JAG ADHARI, WE FIND THAT THE SAID PLEA OF THE ASSESSEE HAS BEEN AC CEPTED BY THE DIT (CIB) VIDE PARA 7 AT PAGE 5 OF THE ORDER IM POSING PENALTY UNDER SECTION 271FA OF THE ACT. THE DIT ( CIB) THEREAFTER HAD ACCEPTED THE DATE OF FURNISHING OF M ANUAL INFORMATION AS DATE OF COMPLIANCE TO THE PROVISIONS OF SECTION 285BA OF THE ACT AND HAD COMPUTED THE PENALTY LEVIA BLE UNDER SECTION 271BA OF THE ACT UPTO SUCH DATE I.E. IN THE CASE OF FINANCIAL YEAR 2005-06, THE PERIOD OF PENALTY WAS D ETERMINED UPTO 11.10.2006 I.E. OF 41 DAYS, THOUGH THE INFORMA TION ON NSDL WAS FURNISHED BY THE ASSESSEE ON A LATER DATE. 39. WE FIND MERIT IN THE CLAIM OF THE ASSESSEE IN T HIS REGARD IN VIEW OF THE PROVISIONS OF SECTION 285BA OF THE A CT AS PER WHICH THE ASSESSEE CAN FILE THE RETURN EITHER WITH THE PRESCRIBED AUTHORITY OR WITH THE AUTHORIZED AGENCY OF THE PRESCRIBED AUTHORITY. HOWEVER, UNDER THE PROVISO T O RULE 114E(3) OF THE IT RULES, IT IS CLARIFIED THAT THE A IR IS TO BE FILED WITH THE AUTHORIZED AGENCY ON BEHALF OF THE D IT (CIB), 9 WHO IN TURN WOULD UPLOAD IT ON THE SOFTWARE. IN CA SES WHERE THE PERSON HAD FILED AIR WITH THE PRESCRIBED AUTHOR ITY BUT HAD NOT UPLOADED THE SAME THROUGH THE NSDL, THEN THE SA ME WOULD BE A TECHNICAL DEFAULT AND THE PERSON COULD BE HELD TO HAVE A REASONABLE CAUSE IN NOT FURNISHING THE INFORMATION THROUGH NSDL AND NO PENALTY UNDER SECTION 271FA OF THE ACT IS LEVIABLE FOR THE PERIOD OF DEFAULT BETWEEN THE DATE OF FURNISHING THE INFORMATION MANUALLY AND THE DATE OF FURNISHING THE INFORMATION THROUGH THE AUTHORIZED AGENCY I.E. NSDL. HOWEVER, THE ONUS IS UPON THE ASSESSEE TO ESTABLISH ITS CASE OF HAVING FURNISHED COMPLETE INFORMATION MANUALLY TO T HE PRESCRIBED AUTHORITY, WHICH IN-TURN WAS FURNISHED T O THE AUTHORIZED AGENCY ON A LATER DATE. THE CASE OF REA SONABLE CAUSE ON THIS ACCOUNT AND THE BENEFIT OF NON-LEVY O F PENALTY UNDER SECTION 271BA OF THE ACT ON THIS ISSUE IS BEI NG ACCEPTED IN THE PRESENT YEARS WHICH ARE THE INITIAL YEARS WH EN THE PROVISIONS OF SECTION 285BA OF THE ACT WERE INTRODU CED AND THERE WAS NON-AWARENESS ABOUT THE SAID PROVISIONS O F THE ACT. HOWEVER, THE SAID PLEA WOULD NOT BE AVAILABLE TO TH E ASSESSEE IN LATER YEARS AS COMPLETE AWARENESS ABOUT THE PROV ISIONS OF THE ACT AND THE COMPLIANCE THROUGH THE AUTHORIZED A GENCY HAS BEEN MADE AVAILABLE TO THE SPECIFIED PERSONS. 40. THE LD. AR FOR THE ASSESSEE HAS TIME AND AGAIN REFERRED TO VARIOUS REPLIES FILED BEFORE THE DIFFERENT OFFIC ERS FOR THE RESPECTIVE YEARS IN COMPLIANCE TO THE NOTICES ISSUE D UNDER SECTION 133(6) OF THE ACT. RELIANCE WAS PLACED ON T HE INFORMATION FURNISHED AS PER THE REPLY PLACED AT PA GE 7 OF THE PAPER BOOK. IT MAY BE BROUGHT ON RECORD THAT THE S AID INFORMATION HAS BEEN FURNISHED BY THE ASSESSEE IN R ESPONSE TO THE INFORMATION SOUGHT UNDER SECTION 133(6) OF THE ACT IN RELATION TO THE TRANSACTIONS BETWEEN RS. 5 LACS TO RS. 30 LACS, WHICH IS NOT THE INFORMATION SOUGHT FOR UNDER SECTI ON 285BA OF THE ACT. HENCE, NO RELIANCE CAN BE PLACED ON SUC H REPLIES FILED BY THE ASSESSEE FROM TIME TO TIME AND THE SAM E HAVE TO BE IGNORED. SIMILAR PLEA WAS MADE BY THE ASSESSEE IN RESPECT OF THE OTHER YEARS BUT THERE IS NO BASIS OF THE SAME A S THE PERUSAL OF THE PAPER BOOK REFLECTS THE SAID INFORMATION TO BE IN RESPECT OF THE PROPERTIES TRANSACTIONS OF SALE VALU E BETWEEN RS. 5 LACS AND RS. 30 LACS WHEREAS UNDER SECTION 28 5BA OF THE ACT, THE INFORMATION IS TO BE FURNISHED IN RESPECT OF THE PROPERTIES SOLD HAVING SALE VALUE OF RS. 30 LACS OR MORE. THE SAID PLEAS RAISED BY THE ASSESSEE ARE, THUS REJECTE D. 41. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND IN VIEW OF OUR OBSERVATIONS IN THE PARAS HEREIN ABOVE, IN-T URN FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE GUJRAT HIGH COURT IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CI B) (SUPRA), WE DIRECT THE ASSESSING OFFICER TO RECOMPU TE THE PENALTY LEVIABLE UNDER SECTION 271BA OF THE ACT AND THE PERIOD OF PENALTY IN FURNISHING THE INFORMATION WOULD BE C OMPUTED ON THE BASIS OF FOLLOWING DIRECTIONS : 1. NO PENALTY TO BE LEVIED TILL THE FIRST NOTICE IS SUED TO THE ASSESSEE TO FURNISH THE REQUISITE INFORMATIO N HOLDING THE SAME TO BE REASONABLE CAUSE IN NOT FURNISHING THE AIRS IN TIME. IN THE ABSENCE OF ANY NOTICE 10 ISSUED TO THE SPECIFIED PERSONS, THE DATE OF FILING THE FIRST AIR WOULD BE DATE OF NOTICE. 2. WHERE THE ASSESSEE HAD FURNISHED MANUAL INFORMATION BEFORE THE CONCERNED AUTHORITIES IN RES PECT OF SPECIFIED TRANSACTIONS OF RS. 30 LACS OR MORE AN D NOT UPLOADED THE SAID INFORMATION THROUGH APPOINTED AGE NCY, THEN DEFAULT BETWEEN DATE OF FURNISHING MANUAL INFORMATION AND UPLOADING ON SYSTEM, BEING TECHNICA L IS TO BE IGNORED, WHICH HAS BEEN IGNORED BY DIT (CIB) IN MAJORITY OF CASES. THE ONUS IS UPON THE ASSESSEE T O FURNISH THE COMPLETE INFORMATION OF MANUALLY FURNIS HING THE COMPLETE INFORMATION, WHICH IN TURN WAS UPLOADE D. 3. NO PENALTY UNDER SECTION 271FA OF THE ACT TO BE IMPOSED FOR THE OVERLAPPING PERIOD OF DEFAULT. FOR EG. IF THE ASSESSEE HAD DEFAULTED IN FURNISHING AIRS FO R FOUR FINANCIAL YEARS I.E. FINANCIAL YEARS 2004-05 TO 200 7-08 AND THE FIRST NOTICE WAS RECEIVED ON 01.01.2006, TH EN IN ALL THE YEARS, NO PENALTY IS LEVIABLE FOR DEFAULT U PTO 01.01.2006 AND IS LEVIABLE FOR THE DEFAULT THEREAFT ER. 43. HOWEVER, IN CASES WHERE THE ANNUAL INFORMATION REPORTS HAVE BEEN FILED BY THE SPECIFIED PERSONS BEYOND THE ABOVESAID PERIOD OF LIMITATION, THE SPECIFIED PERSON WOULD BE HELD TO BE IN DEFAULT, MAKING IT ELIGIBLE TO LEVY OF PENALTY U NDER SECTION 271FA OF THE ACT. THE DIT (CIB) IS DIRECTED TO REC OMPUTE THE SAID LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT IN LINE WITH OUR DIRECTIONS. HOWEVER, REASONABLE OPPORTUNI TY OF HEARING SHOULD BE AFFORDED IN THIS REGARD AND THE S PECIFIED PERSON SHALL FURNISH COMPLETE INFORMATION BEFORE HI S DIT (CIB), WITH REGARD TO ITS SEVERAL CLAIMS, IN ORDER TO FINALLY DETERMINE THE PERIOD OF DEFAULT AND THE QUANTUM OF PENALTY LEVIABLE UNDER SECTION 271FA OF THE ACT. THE GROUN DS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED AS STATED ABOVE. 44. IN THE RESULT, APPEALS OF THE ASSESSEES ARE PAR TLY ALLOWED. 8. THE ISSUE IN THE PRESENT CASE IS IDENTICAL TO TH E ISSUE RAISED BEFORE THE CHANDIGARH BENCH OF TRIBUNAL VIDE ORDER DATED 3 0.10.2013AND FOLLOWING THE SAME PARITY OF REASONING, WE DIRECT T HE ASSESSING OFFICER TO RECOMPUTE THE QUANTUM OF PENALTY LEVIABLE UNDER SECTION 271FA OF THE ACT IN THE FACTS OF THE PRESENT CASE IN LINE WITH O UR OBSERVATIONS IN THE SAID ORDER. REASONABLE OPPORTUNITY OF HEARING SHAL L BE AFFORDED TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FURNISH THE INFORMATION BEFORE THE 11 DIT (CIB). THE GROUNDS OF APPEAL RAISED BY THE ASS ESSEE ARE ALLOWED AS INDICATED ABOVE. 9. I N THE RESULT, ALL THE APPEALS OF THE ASSESSEE IN IT A NOS.112 TO 115/CHD/2012 ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF MARCH, 2014. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24 TH MARCH, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH