Sub-Registrar, Tirunelveli V. DIT, CHENNAI

ITA 2006/CHNY/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5254 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-04-2011
• Assessment Year: 2009-2010
• Appeal Filed On: 24-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Assessee Lawyers: N DEVANATHAN
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH C : CHENNAI [BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER] I.T.A NO.2006/MDS/2010 ASSESSMENT YEAR : 2009-10 SUB-REGISTRAR SUB-REGISTRAR OFFICE NO.35, AMBAI ROAD MELAPALAYAM 627 005 TIRUNELVELI VS THE DIRECTOR OF INCOME-TAX(CIB) CHENNAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.DEVANATHAN RESPONDENT BY : SHRI B.SRINIVAS O R D E R PER HARI OM MARATHA, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE, FOR ASSESSMENT YEA R 2009-10, IS DIRECTED AGAINST THE ORDER OF THE DIRECTOR OF INCOM E-TAX (CIB), CHENNAI, DATED 23.9.2010, PASSED U/S 271FA OF THE I .T.ACT. 1961. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT O N VERIFICATION OF THE RECORDS, IT WAS NOTICED THAT SUB-REGISTRARS OF FICE NO.35, AMBAI ROAD, MELAPALAYAM, TAN: MRIT01634D, HAD NOT FURNISH ED THE ANNUAL INFORMATION REPORT(AIR) AS REQUIRED UNDER SUB-SECTI ON (1) OF SECTION 285BA OF THE ACT FOR THE FINANCIAL YEAR 2008-09 WIT HIN THE PRESCRIBED TIME WHICH WAS 31.8.2009. ACCORDINGLY, A SHOW CAUS E NOTICE WAS ITA 2006/10 :- 2 -: ISSUED TO THIS OFFICE SEEKING EXPLANATION FOR THE DELAY. THE SUB- REGISTRARS OFFICE WAS GIVEN OPPORTUNITY OF HEARING ON 12.4.2010 AND 22.9.2010, BUT ON THESE DATES, NO REPRESENTATION WA S MADE FROM THIS OFFICE. CONSEQUENTLY, THE DIT(CIB) LEVIED PENALTY U/S 271FA OF THE ACT. SINCE THE ASSESSEE HAS NOT EXPLAINED ANY REAS ONABLE CAUSE FOR THE DELAY IN FURNISHING AIR IN TIME AND ALSO FOR FI NANCIAL YEARS 2006-07 AND 2007-08 SUCH AIRS WERE NOT FILED, HE LEVIED A P ENALTY OF ` 100/- PER DAY OF DELAY AND CALCULATED THE SAME AT ` 38,700/- [387 DAYS X ` 100]. NOW, THE SUB-REGISTRAR HAS FILED THIS APPEAL BY TAKING THE FOLLOWING GROUNDS: 1. THE APPELLANT DID FILE THE AIR ON 22.9.2010. I. E ON THE DATE OF HEARING POSTED. THE APPELLANT ACTED ON A BO NAFIDE BELIEF THAT MERE FILING OF AIR WOULD SUFFICE AND TH E LEARNED RESPONDENT COULD NOT TAKE COGNIZANCE OF THE AIR FIL ED ON 22.9.2010 OWING TO THE FAILURE ON THE PART OF THE A PPELLANT TO REPLY TO THE RESPONDENT THAT HE HAS COMPLIED THE NOTICE BY FILING AIR. THIS INADVERTENT UNINTENTIONAL ERROR WAS DUE TO THE WRONG NOTION OF THE APPELLANT THAT ON FILING AIR, THE FILING WOULD BE AUTOMATICALLY UPLOADED TO THE DEPT AND WERE OF THE WRONG NOTION THAT THERE WOULD NOT BE AN Y NECESSITY FOR WRITING A LETTER TO THE AUTHORITIES S TATING THAT THE APPELLANT HAS COMPLIED THE PROVISIONS. IN THE L IGHT OF THE ELECTRONIC ERA THE APPELLANT THOUGHT THAT THE N OTICE ISSUED TO THE APPELLANT TO SHOW CAUSE WHY PENALTY S HOULD NOT BE IMPOSED CEASED TO BE OPERATIVE BECAUSE THE APPELLANT HAS COMPLIED THE NOTICE BY FILING AIR ON RECEIPT OF HEARING. 2. FAILURE TO COMPLY WITH THE PROVISIONS OF 285BA O F THE INCOME TAX ACT, 1961 BY THE REGISTERING AUTHORITY I S OWING TO THE IGNORANCE OF KNOWLEDGE IN ELECTRONIC FORM AV AILING THE AIR PREPARATION UTILITY AS SUBMISSION OF AIR IN PHYSICAL FORM IS NOT PERMITTED. ITA 2006/10 :- 3 -: 3. IN -HOUSE FACILITIES FAILED TO SUPPORT FILING AI R IN TIME AND THE APPELLANT HAD TO RESORT TO OUTSOURCE THE SAME. 4. THE FAILURE ON THE PART OF THE APPELLANT ATTRIBU TED TO THE REASONABLE CAUSE AS CONTEMPLATED UNDER SECTION 273B OF THE INCOME TAX ACT,1961. 5. HENCE IS HAVING A REASONABLE CAUSE FOR NOT COMPL YING THE PROVISIONS CAUSE OF SEC.271F OF THE INCOME TAX ACT 1961. 6. THE APPELLANT CRAVES LEAVE TO ADD/ALTER ANY OF T HE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE MAIN CONT ENTION OF THE APPELLANT IS THAT THIS OFFICE WAS UNDER MISCONC EPTION THAT AIR FILED ON 22.9.2010 IN RESPONSE TO THE NOTICE RECEIVED U/ S 271FA OF THE ACT, WOULD AUTOMATICALLY BE TREATED AS ENOUGH COMPLIANCE AND NO FURTHER EXPLANATION WAS NEEDED AGAINST THE LEVY OF PENALTY FOR NOT FILING IT IN TIME. IT HAS BEEN PLEADED THAT FAILURE TO COMPLY W ITH THE PROVISIONS OF THE ACT BY THE REGISTERING AUTHORITY WAS OWING TO I TS IGNORANCE, PARTICULARLY WHEN IT WAS MADE AVAILABLE ON NET, THA T THERE WAS NO NEED OF FILING A HARD COPY OF THE AIR, AND ALSO THAT IN- HOUSE FACILITIES FAILED TO SUPPORT FILING AIR IN TIME AND THE APPELLANT HAD TO RESORT TO OUTSOURCE THE SAME. ACCORDING TO THE APPELLANT, THIS IS A REASONABLE CAUSE AS CONTEMPLATED UNDER SECTION 273B OF THE ACT . IN THIS BACKGROUND, IT HAS BEEN PLEADED THAT PENALTY LEVIED MAY BE DELETED. ITA 2006/10 :- 4 -: 4. THE CASE OF THE REVENUE IS THAT THE AUTHORITY HAS F AILED TO COMPLY WITH THE PROVISIONS OF THE ACT BY NOT FILING THE AIR IN TIME I.E BY 30.9.2009; AND THAT NO EXPLANATION IN THE FORM O F REASONABLE CAUSE HAS BEEN FURNISHED IN THIS REGARD, THEREFORE, THE P ENALTY HAS BEEN CORRECTLY LEVIED. THE OTHER REASONING GIVEN BY THE LD.DR IS THAT THE APPELLANT HAS DIRECTLY FILED THE APPEAL BEFORE THE TRIBUNAL WHICH WILL NOT LIE IN VIEW OF THE DECISION OF THIS BENCH TAKEN IN THE CASE OF SUB- REGISTRAR, KADAYANALLUR VS DIT(CIB) IN I.T.A.NO. 18 75/MDS/2010, FOR ASSESSMENT YEAR 2009-10, ORDER DATED 13.1.2011, IN WHICH IT HAS BEEN HELD THAT APPEAL AGAINST THE ORDER OF THE DIT(CIB) DOES NOT DIRECTLY LIE TO THE TRIBUNAL, BUT IT FIRST LIES BEFORE THE LD. CIT(A). ONLY SECOND APPEAL CAN BE FILED BEFORE THE ITAT. 5. WE HAVE SEEN THE TRIBUNAL ORDER DATED 13.1.2011 AND ARE CONVINCED THAT THIS APPEAL BEFORE THE TRIBUNAL IS N OT MAINTAINABLE BECAUSE THE FIRST APPEAL AGAINST THE PENALTY ORDER LIES BEFORE THE LD. CIT(A). IN THAT VIEW OF THE MATTER, WE CANNOT TREA T THIS APPEAL AS MAINTAINABLE; BUT STILL IN THE GIVEN FACTS AND CIRC UMSTANCES OF THE CASE, WE WOULD LIKE TO OBSERVE THAT IT IS OPEN TO THE APP ELLANT TO FILE PROPER APPEAL BEFORE THE LD. CIT(A) AFTER OBTAINING LEGAL OPINION, IF IT SO ADVISED. HENCE, BY RESPECTFULLY FOLLOWING OUR ABOV E ORDER, WE DISMISS THE APPEAL WHICH IS FILED DIRECTLY BEFORE THE TRIBU NAL, BEING NOT MAINTAINABLE. ITA 2006/10 :- 5 -: 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 12.4. 2011. SD/- SD/- (DR. O.K. NARAYANAN) VICE-PRESIDENT (HARI OM MARATHA) JUDICIAL MEMBER DATED: 12 TH APRIL, 2011 RD COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR