KISHORE DESAI, MUMBAI V. ACIT 17(1), MUMBAI

ITA 3071/MUM/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6785 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 02-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIPUL J SHAH
• Keywords: Recovery proceedings; Opportunity of being heard
• Section: 40A(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI BEFORE SHRI G S PANNU, ACCOUNTANT MEMBER & SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA NO.3071/MUM/2014 ASSESSMENT YEAR : 2011-12 KISHORE DESAI, 273/15 KHOSLA BUNDER, DARUKHANA, MUMBAI 400 010 PAN AAEPD8009N VS. ACIT 17(1) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIPUL J SHAH RESPONDENT BY : SHRI ASHISH KUMAR DATE OF HEARING : 22.05.2018 DATE OF PRONOUNCEMEN T : 22.05.2018 O R D E R PER G S PANNU, ACCOUNTANT MEMBER THIS APPEAL IS DIRECTED AGAINST THE ORDER OF THE C IT(A)-29, MUMBAI, DATED 12.12.2013, WHICH IN TURN HAS ARISEN OUT OF THE ORD ER PASSED BY THE ASSESSING OFFICER U/S. 221(1) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) RELATING TO A.Y. 2011-12. 2. THIS APPEAL BY THE ASSESSEE INVOLVES A SHORT PO INT RELATING TO LEVY OF PENALTY OF ` 1,50,000/- U/S. 221(1) OF THE ACT, FOR NON-PAYMENT OF SELF ASSESSMENT TAX ALONG WITH THE RETURN OF INCOME. 3. AT THE OUTSET, LEARNED REPRESENTATIVE FOR THE AS SESSEE POINTED OUT THAT THERE WAS A DELAY OF FORTY DAYS IN FILING OF THE APPEAL, FOR WHICH THE APPELLANT HAS FURNISHED AN AFFIDAVIT DATED 19.05.2018, SEEKING CO NDONATION OF DELAY. AS PER THE APPLICANT, THE DELAY OF FORTY DAYS WAS PURELY UNINT ENTIONAL AND DUE TO HIS ILL HEALTH AT THE RELEVANT POINT OF TIME, WHICH IS ALSO SUPPOR TED BY A CERTIFICATE OF MEDICAL ITA NO.3071/MUM/2014 KISHORE DESAI 2 PRACTITIONER, WHICH HAS BEEN FILED AT THE TIME OF H EARING. CONSIDERING THAT THE BONA FIDES OF THE REASONS HAVE BEEN ASSAILED, WE DEEM IT FIT AND APPROPRIATE TO CONDONE THE DELAY IN FILING OF THE APPEAL. 4. IN THIS BACKGROUND, BOTH THE PARTIES WERE HEARD ON MERITS OF THE ISSUE. IN BRIEF, THE RELEVANT FACTS ARE THAT THE ASSESSEE FIL ED RETURN OF INCOME ON 09.08.2011 PERTAINING TO A.Y. 2011-12, WHICH WAS NOT ACCOMPANI ED BY SELF-ASSESSMENT TAX PAYABLE AT ` 5,06,837/-. IN THE PENALTY ORDER, THE ASSESSING O FFICER RECORDS THAT A LETTER DATED 04.01.2012 WAS ISSUED TO THE ASSESSEE REQUIRING HIM TO MAKE PAYMENT OF SELF ASSESSMENT TAX AND ALSO TO SHOW CASE AS TO WHY PENALTY SHOULD NOT BE LEVIED U/S. 221 FOR THE DEFAULT IN MAKING PAYMENT OF SELF ASSESSMENT TAX. THE ASSESSING OFFICER RECORDS THAT NO EXPLANATION HAS BEEN FURNIS HED BY THE ASSESSEE AND, THEREFORE, HE LEVIED PENALTY OF ` 1,50,000/- U/S. 221(1) OF THE ACT. THIS ACTION OF THE ASSESSING OFFICER HAS BEEN CONFIRMED BY THE CIT (A) PRIMARILY ON THE GROUND THAT THE ABSENCE OF ANY EXPLANATION BY THE ASSESSEE SHOW S THAT THERE WAS NO BONA FIDE PLEA OF THE ASSESSEE AGAINST THE LEVY OF PENALTY. AGAINST THE SUSTENANCE OF PENALTY ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. ON FACTS ASSESSEE POINTED OUT THAT THE ASSESSING OFFICER HAS LEVIED PENALTY WITHOUT WAITING FOR REPLY OF THE ASSESSEE IN AS MUC H AS VIDE LETTER DATED 10.11.2012 (ACKNOWLEDGED IN THE OFFICE OF DCIT 17(1) ON 11.01. 2012) ASSESSEE SOUGHT TIME TO FURNISH REPLY, BUT ASSESSING OFFICER CHOSE TO LEVY PENALTY. IN ANY CASE, THE LEARNED REPRESENTATIVE POINTED OUT THAT THE ISSUE IS NOW SE TTLED IN VIEW OF THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF HEDDLE KNOWLEDGE PRIVATE LIMITED IN ITA NO.7509/MUM/2011 DATED 19.01.2018, WHEREIN IT H AS BEEN HELD THAT SUBSEQUENT TO 01.04.1989, IN SUCH SITUATIONS PENALT Y U/S. 221(1) OF THE ACT IS NOT LEVIABLE. 6. ON THE OTHER HAND, THE ONLY PLEA OF THE DR IS BY WAY OF REFERENCE TO PENALTY ORDER, WHICH WE HAVE ALREADY NARRATED IN THE EARLIE R PARA AND IS NOT REPEATED FOR THE SAKE OF BREVITY. 7. ON CAREFUL CONSIDERATION, WE FIND THAT IN THE CA SE OF HEDDLE KNOWLEDGE PRIVATE LIMITED (SUPRA), THE MUMBAI BENCH OF THE TR IBUNAL UPHELD THE ASSERTION OF ITA NO.3071/MUM/2014 KISHORE DESAI 3 THE ASSESSEE, WHICH ARE ALSO APPLICABLE FOR THE ASS ESSMENT YEAR UNDER CONSIDERATION TO THE EFFECT THAT THE PROVISIONS OF SECTION 140A(3 ) OF THE ACT DOES NOT ENVISAGE PENALTY FOR DELAY IN PAYMENT OF SELF ASSESSMENT TAX . FOLLOWING DISCUSSION IN THE ORDER OF THE TRIBUNAL DATED 19.01.2018 IS RELEVANT: 3. AGAINST THE AFORESAID BACKGROUND, THE PLEA RAIS ED BY THE ASSESSEE BEFORE US IS QUITE DIFFERENT FROM WHAT HAS BEEN RAI SED BEFORE THE LOWER AUTHORITIES. AT THE TIME OF HEARING, THE LEARNED RE PRESENTATIVE HAS GIVEN A NEW TWIST TO THE CONTROVERSY BY POINTING OUT THAT T HE PROVISIONS OF SEC. 140A(3) OF THE ACT, AS IT STOOD FOR THE YEAR UNDER CONSIDERATION, DID NOT ENVISAGE LEVY OF PENALTY FOR THE DELAY IN DEPOSIT O F SELF-ASSESSMENT TAX. IN ORDER TO APPRECIATE THE POINT SOUGHT TO BE RAISE D BY THE LEARNED REPRESENTATIVE, THE FOLLOWING DISCUSSION IS RELEVAN T. 4. SEC. 140A(3) OF THE ACT, AS IT STANDS FOR THE YE AR UNDER CONSIDERATION, READS AS UNDER :- '140A(3) IF ANY ASSESSEE FAILS TO PAY THE WHOLE OR ANY PART OF SUCH TAX [OR INTEREST OR BOTH] IN ACCORDANCE WITH THE PR OVISIONS OF SUB- SECTION (1), HE SHALL, WITHOUT PREJUDICE TO ANY OTH ER CONSEQUENCES WHICH HE MAY INCUR, BE DEEMED TO BE AN ASSESSEE IN DEFAULT IN RESPECT OF THE TAX [OR INTEREST OR BOTH] REMAINING UNPAID, AND ALL THE PROVISIONS OF THIS ACT SHALL APPLY ACCORDINGLY.' 5. OUR ATTENTION HAS BEEN DRAWN TO THE ERSTWHILE SE C. 140A(3) OF THE ACT WHICH WAS OPERATIVE UPTO 31.03.1989 AND WAS AMENDED BY THE DIRECT TAX LAWS (AMENDMENT) ACT, 1987, AND THE ERSTWHILE P ROVISION READ AS UNDER:- '(3) IF ANY ASSESSEE FAILS TO PAY THE TAX OR ANY PA RT THEREOF IN ACCORDANCE WITH THE PROVISIONS OF SUB-SECTION (1), THE ASSESSING OFFICER MAY DIRECT THAT A SUM EQUAL TO TWO PER CENT OF SUCH TAX OR PART THEREOF, AS THE CASE MAY BE, SHALL BE RECOVERE D FROM HIM BY WAY OF PENALTY FOR EVERY MONTH DURING WHICH THE DEF AULT CONTINUES; PROVIDED THAT BEFORE LEVYING ANY SUCH PENALTY, THE ASSESSEE SHALL BE GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD.' QUITE CLEARLY, IN TERMS OF THE PROVISIONS OF SEC. 1 40A(3) OF THE ACT AS EXISTING TILL 31.03.1989, THE ASSESSING OFFICER WAS EMPOWERED TO LEVY PENALTY IN CASES WHERE ASSESSEE HAD FAILED TO PAY T HE SELF-ASSESSMENT TAX, AND SUCH PENALTY WAS LEVIABLE FOR EVERY MONTH DURING WHICH THE DEFAULT CONTINUED OF . A SUM EQUL TO 2% OF SUCH TA X OR PART THEREOF. AT THE TIME OF INTRODUCTION OF , THE NEW SECTION BY TH E DIRECT TAX LAWS (AMENDMENT) ACT, 1987 W.E.F. 01.14.1989, THE EXPLAN ATORY NOTES ISSUED BY CBDT VIDE CIRCULAR NO. 549 OF 31.10.1989 CONTAIN ED THE FOLLOWING, ITA NO.3071/MUM/2014 KISHORE DESAI 4 WHICH SEEKS TO EXPLAIN THE IMPORT OF THE SUBSTITUTI ON OF NEW SECTION. THE RELEVANT PARAGRAPHS OF THE CIRCULAR DATED 31.10.198 9 (SUPRA) ARE REPRODUCED AS UNDER :- 'PARA 4.17: THE OLD PROVISIONS OF SUBSECTION (3) OF THE SECTION PROVIDED FOR LEVY OF PENALTY FOR NON-PAYMENT OF SEL F-ASSESSMENT TAX, SINCE THE RATE OF MANDATORY INTEREST FOR FAILURE TO PAY THE TAX HAS NOW BEEN INCREASED, IT IS NOT NECESSARY TO RETAIN T HIS PROVISION ANY MORE. THE AMENDING ACT HAS ACCORDINGLY OMITTED THE SAID SUB SECTION (3). 4.18: IN ORDER TO VEST THE POWER OF RECOVERY OF TAX AND INTEREST DUE UNDER THIS SECTION ON THE BASIS OF THE RETURN, AMEN DING ACT 1987, HAS INSERTED A NEW SUB SECTION (3) IN THE SECTION T O PROVIDE THAT IF ANY ASSESSEE HAS NOT PAID SELF ASSESSMENT TAX AND I NTEREST IN FULL BEFORE FILING THE RETURN, HE SHALL BE DEEMED TO BE AN ASSESSEE IN DEFAULT IN RESPECT OF SUCH TAX AND INTEREST.' QUITE CLEARLY, IF ONE IS TO READ THE EARLIER SEC. 1 40A(3) OF THE ACT AND THE AMENDED SECTION W.E.F. 1.4.1989 ALONGWITH THE EXPLA NATORY NOTES TO THE AMENDMENT CONJOINTLY, IT IS CLEAR THAT THE EARLIER PROVISION PRESCRIBING FOR LEVY OF PENALTY FOR DEFAULT OUTLINED IN SUB-SECTION (1) OF SEC. 140A(3) HAS YIELDED PLACE TO MANDATORY CHARGING OF INTEREST FOR SUCH DEFAULT. THE AFORESAID LEGISLATIVE INTENT ALSO GETS STRENGTH BY THE FACT THAT SIMULTANEOUSLY THE LEGISLATURE PRESCRIBED FOR MANDA TORY CHARGING OF INTEREST U/S 234B OF THE ACT FOR DEFAULT IN PAYMENT OF SELF-ASSESSMENT TAX W.E.F. 01.04.1989 ONWARDS. 6. HOWEVER, A CONTRARY POSITION IS TAKEN BY THE REV ENUE TO THE EFFECT THAT FOR HAVING DEFAULTED IN PAYMENT OF SELF-ASSESSMENT TAX WITHIN THE STIPULATED PERIOD, ASSESSEE QUALIFIES TO BE 'AN AS SESSEE IN DEFAULT' AS PRESCRIBED IN THE AMENDED SEC. 140A(3) OF THE ACT A ND, THEREFORE, IF ONE IS TO READ THE SAME WITH SEC. 221(1) OF THE ACT, TH E ACTION OF THE ASSESSING OFFICER IN IMPOSING PENALTY IS QUITE JUST IFIED. IN SUM AND SUBSTANCE, IT IS SOUGHT TO BE EMPHASISED ON THE STR ENGTH OF SEC. 221(1) OF THE ACT THAT THE PENALTY IS LEVIABLE SO LONG AS THE DEFAULT IS IN THE NATURE WHICH RENDERS THE ASSESSEE AS AN 'ASSESSEE I N DEFAULT' FOR PAYMENT OF TAX. SEC. 221(1) OF THE ACT PRESCRIBES F OR PENALTY WHEN ASSESSEE IS IN DEFAULT IN MAKING THE PAYMENT OF TAX . ON THE FACE OF IT, THE ARGUMENT OF THE REVENUE APPEARS TO BE JUSTIFIED, SO HOWEVER, THE SAME DOES NOT MERIT ACCEPTANCE IF ONE EXAMINES THE ISSUE IN SLIGHT DETAIL. NOTABLY, THE PENALTY ENVISAGED SEC. 140A(3) IN THE UNAMENDED PROVISION WAS ON THE STATUTE ALONGWITH THE PENALTY ENVISAGED U/S 221 OF THE ACT. ONCE SEC. 140A(3) OF THE ACT HAS BEEN AMENDED W.E.F . 01.04.1989, AS WE HAVE SEEN EARLIER, THERE IS NO AMENDMENT OF SEC. 221 OF THE ACT AND IT CONTINUES TO REMAIN THE SAME. WHAT WE ARE TRYING TO EMPHASISE IS IF THE PLEA OF THE REVENUE IS TO BE ACCEPTED, BASED ON THE AMENDMENT TO ITA NO.3071/MUM/2014 KISHORE DESAI 5 SEC. 140A(3) OF THE ACT, IT WOULD MEAN THAT PRIOR T O 01.04.1989 THE SAME DEFAULT INVITED PENAL PROVISIONS UNDER TWO SECTIONS , NAMELY, SEC. 140A(3) AS WELL AS SEC. 221(1) OF THE ACT, WHICH WOULD APPE AR TO BE PECULIAR AND UNINTENDED. FURTHERMORE, THE INTENTION OF THE LEGIS LATURE AT THE TIME OF INSERTION OF THE AMENDED SEC. 140A(3) MAKES IT CLEA R THAT THE OLD PROVISIONS OF SEC. 140A(3) PRESCRIBING FOR LEVY OF PENALTY FOR NON- PAYMENT OF SELF-ASSESSMENT TAX WAS NO LONGER FOUND NECESSARY BECAUSE THE SAID DEFAULT WOULD HENCEFORTH INVITE MANDATORY CHARGING OF INTEREST. OSTENSIBLY, THE LEGISLATURE DID NOT ENVISAGE \ THAT CONSEQUENT TO THE AMENDMENT, THE DEFAULT IN PAYMENT OF SELF-ASSESSMEN T TAX WOULD HITHERTO BE COVERED BY THE SCOPE OF SEC. 221(1) OF THE ACT. THE EMPHASIS OF THE REVENUE IS TO POINT OUT THAT THE NON-PAYMENT OF SELF-ASSESSMENT TAX RENDERS THE ASSESSEE 'IN DEFAULT' IN THE AMEND ED PROVISION WHICH FURTHER PRESCRIBES THAT 'ALL THE PROVISIONS OF THIS ACT SHALL APPLY ACCORDINGLY' AND, THEREFORE, THE DEFAULT IS HITHERT O (FROM 01.04.1989) COVERED BY SEC. 221(1) OF THE ACT. IN OUR VIEW, THE CONSEQUENCE OF THE AFORESAID TWO EXPRESSIONS CONTAINED IN SEC. 140A(3) ARE ALSO NOT OF THE TYPE SOUGHT TO BE UNDERSTOOD BY THE REVENUE, AND RA THER THE ASSESSEE IS TO BE TREATED AS AN 'ASSESSEE IN DEFAULT' FOR THE L IMITED PURPOSE OF ENABLING THE ASSESSING OFFICER TO MAKE RECOVERY OF THE AMOUNT OF TAX AND INTEREST DUE AND NOT FOR LEVY OF PENALTY, AN ASPECT WHICH HAS BEEN SPECIFICALLY DONE AWAY IN THE NEW PROVISION. THEREF ORE, CONSIDERED IN THE AFORESAID LIGHT, IN OUR VIEW, THE FACT THAT THE AME NDED SEC. 140A(3) W.E.F. 01.04.1989 DOES NOT ENVISAGE ANY PENALTY FOR NON-PAYMENT OF SELF- ASSESSMENT TAX, THE ASSESSING OFFICER WAS NOT JUSTI FIED IN LEVYING THE IMPUGNED PENALTY BY MAKING RECOURSE TO SEC. 221(1) OF THE ACT. BEFORE PARTING, WE MAY AGAIN EMPHASISE THAT SEC. 221 OF TH E ACT REMAINS UNCHANGED, BOTH DURING THE PRE AND POST AMENDED SEC . 140A(3) OF THE ACT AND EVEN IN THE PRE-AMENDED SITUATION, PENALTY U/S 221 OF THE ACT WAS NOT ATTRACTED FOR DEFAULT IN PAYMENT OF SELF-AS SESSMENT TAX, WHICH WAS EXPRESSLY COVERED IN PRE 01.04.1989 PREVAILING SEC. 140A(3). THUS, WITHOUT THERE BEING ANY REQUISITE CORRESPONDING AME NDMENT TO SEC. 221 OF THE ACT IN CONSONANCE WITH THE AMENDMENTS CARRIE D OUT IN SEC. 140A(3) OF THE ACT W.E.F. 01.04.1989, THE ASSESSING OFFICER ERRED IN LEVYING THE IMPUGNED PENALTY. THUS, ON THIS ASPECT , WE HEREBY SET- ASIDE THE ORDER OF CIT(A) AND DIRECT THE ASSESSING OFFICE R TO DELETE THE PENALTY IMPOSED U/S. 140A(4) R.W.S. 221(1) OF THE ACT. FOLLOWING THE AFORESAID DECISION OF OUR CO-ORDINATE BENCH, WHICH HAS BEEN RENDERED UNDER IDENTICAL CIRCUMSTANCES, IN OUR VIEW THE LEVY OF PENALTY IS UNTENABLE AND IS DIRECTED TO BE DELETED. ITA NO.3071/MUM/2014 KISHORE DESAI 6 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF HEARING IN THE PRESENCE OF BOTH THE PARTIES TODAY I .E. 22 ND MAY, 2018. SD/- SD/- (SANDEEP GOSAIN) (G S PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 22 ND MAY, 2018. SA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE C I T(A), MUMBAI. 4. THE C I T , MUMBAI. 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI