Innovative Co-Operative Urban Bank Ltd., New Delhi V. DIT(CIB), New Delhi

ITA 2094/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3642 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 27-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 27-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI NAOREM
• Assessee Lawyers: A K SHARMA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I NEW DELHI) BEFORE SMT. DIVA SNGH, JUDICIAL MEMBER AND SHRI B.K. HALDAR, ACCOUNTANT MEMBER I.T.A. NO.2094 /DEL/2011 ASSESSMENT YEAR : 2005-06 INNOVATIVE COOPERATIVE URBAN DIT (CIB), BANK LTD., C.2/2, IST FLOOR, NEW DELHI WAZIRPUR INDL. AREA, N. DELHI. V. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AAATI AAATI AAATI AAATI- -- -2988 2988 2988 2988- -- -K KK K APPELLANT BY : SHRI A.K. SHARMA, ADVOCATE. RESPONDENT BY : MS. BANITA DEVI NAOREM, SR. DR. ORDER PER B.K. HALDAR, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF DIRECTOR OF INCOME TAX, CIB, NEW DELHI DATED 21.3.2011 IMPOSI NG PENALTY OF `.90,700/- U/S 271FA OF THE INCOME TAX ACT, 1961 FOR FINANCIAL YEAR 2004-05. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF AP PEALS:- 1. THAT THE ASSESSING AUTHORITY FAILED TO APPRECIATE THAT THE DEVELOPMENT IN THE INTERNAL WORKING OF THE BANK WAS BEYOND THE CONTROL OF THE BANK. 2. THAT THE ASSESSING AUTHORITY FAILED TO APPRECIATE THAT THE ENTIRE DATA OF THE BANK GOT FAILED DUE TO MECHANICAL FAILU RE OF THE FAILURE OF THE COMPUTER SYSTEM. PAGE 2 OF 6 ITA NO.2094/DEL/11 3. THAT THE ASSESSING AUTHORITY FAILED TO APPRECIATE THAT ON ACCOUNT OF LEGAL PROCEEDINGS INITIATED BY THE LANDLORD OF TH E BANK, THE ENTIRE SET UN OF THE BANK GOT DISTURBED AND ON ACCOUN T OF IT THE PREMISES WERE OUGHT TO BE TRANSFERRED WHICH WAS ALSO A SUBSTANTIAL; GROUND STATED BY THE BANK WHICH THE ASSESSING AUTHORITY FAILED TO APPRECIATE. 4. THAT THE ASSESSING AUTHORITY FAILED TO DISCLOSE WHY THE CONTENTION OF THE BANK HAS NOT BEEN CONSIDERED WHICH ITSELF IS NOT SUPPORTED BY ANY COGNATE MATERIAL OR GROUND WHIC H IN ITSELF IS BAD IN THE EYES OF LAW. 5. THAT THE ASSESSING AUTHORITY FAILED TO APPRECIATE THE E VIDENCE ADDUCED BY THE APPELLANT WHICH IN ITSELF IS CONSISTENT TO PRINCIPALS OF NATURAL JUSTICE AND IS LIABLE TO BE QUAS HED. 6. THAT THE ASSESSING AUTHORITY OF FAILED TO APPRECIATE TH E SPIRIT OF THE APPELLANT THAT WHEN THE DATA OF SUBSEQUENT YEARS W ERE AVAILABLE PRIOR TO THE PRECEDING YEAR THEY WERE FUR NISHED AND WHEN THE DATA OF YEAR 2004-05 AVAILABLE THEY WERE SUBSEQUENTLY FILED BUT FROM THE CONDUCT OF APPELLANT THE WRONG INFERENCE ARRIVED IT BY THE ASSESSING AUTHORITY TANTAMO UNT TO GROSS IRREGULARITY BY NOT CONSIDERING THE ACTUAL POSITI ON OF THE APPELLANT. 7. THAT THE APPELLANT RESERVED HIS RIGHT TO EXPLAIN THE JUST AND EQUITABLE POSITION OF THE MATTER DURING THE COURSE OF REGULAR HEARING IN THE MATTER. 2. THE ASSESSEE WAS REQUIRED TO FILE ANNUAL INFORMATION RETURN (AIR) FOR FINANCIAL YEAR 2004-05 AS PER THE PROVISION S OF SECTION 285BA TO THE DIRECTOR OF INCOME TAX, (CIB) ON OR BEFORE 3 1 ST NOVEMBER, 2005. THE ASSESSEE, HOWEVER, FURNISHED SUCH RETURN ON 27.5.2008 . THE DIRECTOR OF INCOME TAX (CIB), THEREFORE, ISSUED A SHOW CAUSE NOTICE ON PAGE 3 OF 6 ITA NO.2094/DEL/11 18.10.2010 ASKING THE ASSESSEE TO SHOW CAUSE AS TO WHY PEN ALTY U/S 271FA OF THE ACT SHOULD NOT BE IMPOSED ON IT FOR FAIL URE TO FURNISH THE AIR IN TIME. IN REPLY, THE ASSESSEE SUBMITTED AS UNDER:- A) THE LAND LADIES OF OUR BANKS PREMISES FILED A SUIT IN T HE COURT OF EVICTION OF THE BANK PREMISES, WHICH WE HAD TO VACATE AND BANK SHIFTED TO NEW PREMISES I.E. C-2/2. WAZIRPUR INDL. AREA, DELHI-52 DURING 2004-05. DUE T O SHIFTING OF THE PREMISES THE WHOLE SYSTEM WAS DISTURBED. B) THE OLD STAFF WORKING THE BANK LEFT. C) UNFORTUNATELY THE COMPUTER SERVER FAILED AND HARD DI SC CONTAINING BANK DATA CRASHED. D) BANK FUNCTIONED WITH THE DATA MAINTAINED MANUALLY. E) SOFTWARE COMPANY WHICH PROVIDED THE BANK SOFTWARE DEMANDED EXORBITANT AMOUNT TO RETRIEVE THE DATA WHI CH OUR BANK COULD NOT AFFORD BEING A SMALL BANK SUFFERI NG LOSSES. 3. THE SUBMISSION OF THE FILER WAS NOT ACCEPTED BY LD D IT (CIB) FOR THE FOLLOWING REASONS:- 1. NO APPLICATION FOR EXTENSION OF TIME TO FILE AIR WAS MADE BY THE ASSESSEE; 2. THE FILER MOVED TO THE NEW PREMISES DURING THE FINAN CIAL YEAR 2004-05 ONLY AND THE RELEVANT AIR WAS TO BE FURNISHED ONLY ON OR BEFORE 30.11.2005. 3. AS PER THE RELEVANT AIR FILED ON 27.5.2008, THERE WE RE 13 ENTRIES AMOUNTING TO `.32,78,600/- WHICH WERE TO BE REPORTE D IN THE AIR. PAGE 4 OF 6 ITA NO.2094/DEL/11 4. DUE TO THE FAILURE OF THE FILER POTENTIAL REVENUE Y IELDING CASES COULD NOT BE SELECTED FOR SCRUTINY UNDER CASS WHICH L EAD TO REVENUE LOSS. SHE, THEREFORE, IMPOSED A PENALTY U/S 271FA OF THE A CT @ `.100/- PER DAY AMOUNTING TO `.90,700/-. 4. AGGRIEVED, THE FILER HAS FILED THE APPEAL BEFORE THE TRIBUNAL. 5. BEFORE US LD AR FOR THE ASSESSEE HAS REITERATED THE SUB MISSIONS MADE BEFORE THE LD DIT (CIB). HOWEVER, NO EVIDENCE IN SUPPORT OF THE CLAIM THAT THE DATA OF THE RELEVANT YEAR GOT CORRUP TED/ERASED AND THE SAME COULD NOT BE RECONSTRUCTED BEFORE 27.5.2008 COUL D BE BROUGHT TO OUR NOTICE. IT WAS ALSO NOT EXPLAINED AS TO HOW THE AI R FOR FINANCIAL YEAR 2005-06 COULD BE FILED ON 1.9.2006. LD AR FOR THE ASSESSEE, HOWEVER, PRAYED THAT THE PENALTY BE DELETED AS THE F AILURE TO FILE THE AIR IN TIME WAS BEYOND THE CONTROL OF THE FILER. 6. LD DR, ON THE OTHER HAND, HAS RELIED ON THE ORDER OF LD DIT (CIB). 7. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. WE FIND THAT AS PER THE PROVISIONS OF SECTION 253 OF THE ACT, NO APP EAL IS PROVIDED FROM AN ORDER PASSED BY DIT (CIB) U/S 271FA OF THE ACT TO THE TRIBUNAL. WE ALSO FIND THAT COORDINATE BENCH OF THE TRIBUNAL N AMELY ITAT, PUNE BENCH B IN M.A. NO. 135/PN/2010 ARISING OUT OF I.T .A. NO.1036/PN/2006 IN THE CASE OF DIRECTOR OF INCOME TA X (CIB), PUNE V. ASSTT. SUB REGISTRAR, NANDURBAR HAS HELD SO. IN THIS VIE W OF THE MATTER, WE DISMISS THE APPEAL OF THE ASSESSEE IN LIMINE BY HOLDING THAT THE TRIBUNAL DOES NOT HAVE JURISDICTION TO ADJUDICATE THE IMPUGNED ISSUES. PAGE 5 OF 6 ITA NO.2094/DEL/11 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED IN LIMINE. 9. ORDER PRONOUNCED IN THE OPEN COURT ON THE 30 TH DAY OF JUNE, 2011. SD/- SD/- (DIVA SINGH) (B.K. HALD AR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 30.6.2011. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 27.6.2011 DATE OF DICTATION 27.6.2011 DATE OF ORDER SIGNED BY THE HON'BLE MEMBER. .6.2011 DATE OF ORDER SENT TO THE CONCERNED BENCH .6.2311 PAGE 6 OF 6 ITA NO.2094/DEL/11