The Sub-Registrar/Joint Sub Registrar, Distt. Hoshiarpur V. The Director of Income-tax, Chandigarh

ITA 332/ASR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0562 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-06-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 15-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKER
• Assessee Lawyers: VINAY MALHOTRA
• Keywords: Bonafide belief; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. (CAMP AT JALANDHAR) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.332(ASR)/2014 ASSESSMENT YEAR:2011-12 PAN: JLDTO0787D THE SUB REGISTRAR, VS. DIRECTOR OF INCOME TAX (INT ELLIGENCE TANDA, & CRIMINAL INVESTIGATION) DISTT. HOSHIARPUR. CHANDIGARH. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. VINAY MALHOTRA, CA RESPONDENT BY: SH. BHAWANI SHANKER, DR DATE OF HEARING: 27/06/2016 DATE OF PRONOUNCEMENT: 11/07/2016 ORDER PER A.D. JAIN, JM: THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2011-12, AGAINST THE ORDER DATED 03.02.2014, PASSED BY THE D IRECTOR OF INCOME TAX (INTELLIGENCE & CRIMINAL INVESTIGATION), CHANDI GARH, UNDER SECTION 271FA OF THE INCOME TAX ACT, 1961, IMPOSING PENALTY ON THE ASSESSEE, AMOUNTING TO RS.36,500/-. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE TANDA S UB-REGISTRAR IS ATTACHED WITH THE TEHSIL DASUYA AND WAS FILING THE AIR JOINTLY WITH DASUYA OFFICE UNDER TAN OF DASUYA OFFICE UP TO FINA NCIAL YEAR 2010-11. THIS IS APPARENT FROM THE LETTER ADDRESSED TO THE D IRECTOR (I&CI) (PAGE 3 ITA NO.332(ASR)/2014 A.Y.2011-12 2 PB) FILED IN RESPONSE TO SHOW CAUSE NOTICE DATED 25 .07.2013 (PAGE 1-2 PB). BEFORE THIS SHOW CAUSE NOTICE, THE ASSESSEE R ECEIVED A DEFICIENCY LETTER FOR THE FINANCIAL YEAR 2011-12 POINTING OUT THAT PAN OF THE ASSESSEE HAD NOT BEEN QUOTED VIDE LETTER DATED 27.0 6.2013 (PAGE 5 PB). THE ASSESSEE REPLIED THIS DEFICIENCY LETTER AND QUO TED HIS PAN (PAGE 5 OF PB, BOTTOM PART OF THE LETTER). IN THE SHOW CAUSE N OTICE DATED 25.07.2013, IT WAS STATED THAT THE ASSESSEE HAD NOT FILLED THIS AIR FOR THE FINANCIAL YEAR 2009-10, 2010-11 AND 2011 -12. IT WA S REPLIED VIDE PARAS 3 AND 4 (PAGE 3 OF PB), THAT AIR FOR 2009-10 & 2010 -11 HAD ALREADY BEEN FILED AND ALSO SUBMITTED THE RELEVANT RECEIPTS . IT WAS FURTHER EXPLAINED IN PARA 5 OF THE REPLY, THAT THE ASSESSEE WAS NOT HAVING HIS OWNED INDEPENDENT TAN AND ACCORDINGLY, APPLIED HIS TAN VIDE APPLICATION DATED 06/08/2013 WHICH WAS ALLOTTED ON 28/08/2016 (PAGE 4 OF PB). IT IS DULY ADMITTED IN THE ORDER THAT THE ASSESSEE HAD ALREADY FILED THE AIR FOR THE FINANCIAL YEAR 2011-12 ON 31/ 08/2013. THE LD DIRECTOR (I & CL) STATED IN PARA 5 OF THE PENALTY ORDER THAT THE APPELLANT WAS ADVISED FOR HIS OBLIGATION TO FILE THE AIR FOR THE FINANCIAL YEARS 2009- 10, 2010- 11 AND 2011-12 AND THE REPLY WAS SOUGHT O N OR BEFORE 20/08/2013. IT IS ON RECORD THAT THE AIR FOR THE FI NANCIAL YEARS 2009-10 AND 2010-11 WERE ALREADY FILLED AND FOR THE YEAR 20 11-12, THE SAME WAS FILED SEPARATELY ON 31/08/20L3. THEREFORE, THE SHOW CAUSE NOTICE OR ADVISORY WAS ISSUED IN A CASUAL MANNER, WITHOUT VER IFICATION OF THE INFORMATION ON RECORD. ITA NO.332(ASR)/2014 A.Y.2011-12 3 2.1 SECTION 285 BA(5) WHICH SAYS THAT IF THE FILER HAS NOT FILLED THE AIR WITHIN THE SPECIFIED PERIOD, THE PRESCRIBED INCOME TAX AUTHORITY MAY SERVE UPON THE FILER A NOTICE REQUIRING HIM TO FURN ISH SUCH STATEMENT WITHIN THE SPECIFIED PERIOD NOT EXCEEDING 60 DAYS. IF THE FILLER FAILS TO FILE THE STATEMENT ON THE ADVISORY FROM THE INCOME TAX A UTHORITY, THE PENALTY MAY BE IMPOSED U/S 271FA. 2.2 THE LD DIRECTOR (I & CL) HAS HELD IN PARA 7 (LA ST FOUR LINES) THAT 'RECORDS INDICATE THAT THE FILER'S OFFICE HAS BEEN ADVISED SEVERAL TIMES OVER THE PAST FEW YEARS INCLUDING THESE YEARS OF TH E STATUTORY LIABILITY U/S 285BA OF THE I. T. ACT BUT TO NO AVAIL. THIS SHOWS THAT THE OFFICER IS HOLDING THIS OFFICE HAVE CONSISTENTLY SHOWN NO REGA RD FOR THE LAW OF LAND.' AS PER THE ASSESSEE, THIS CLEARLY SHOWS THAT THESE OBSERVATIONS, WHICH ARE THE BASIS OF IMPOSING THE PENALTY, ARE FACTUALL Y INCORRECT. IT HAS BEEN DULY ADMITTED IN THE ORDER THAT THE AIR FOR THE FIN ANCIAL YEAR 2009-10 IS FILED IN TIME AND IN CASE OF 2010-11 IT IS LATE BY JUST 15 DAYS. THEREFORE, IT CANNOT BE HELD THAT ANY ADVISORY WAS REQUIRED TO BE ISSUED OR HAS BEEN ISSUED TO THE APPELLANT. IN CASE OF FINANCIAL YEAR 2011-12, ONLY ONE ADVISORY DATED 25/07/2013 WAS ISSUED AND THE FILER COMPLIED WITH THE SAID ADVISORY WITHIN THE SHORTEST POSSIBLE TIME OF LESS THAN 40 DAYS. THEREFORE, IT CANNOT BE SAID THAT THERE WAS ANY CON TRAVENTION OF THE ADVISORY ISSUED TO THE ASSESSEE. THE RELEVANT AIR W AS SENT TO THE CONCERNED CA VIDE LETTER DATED 21/08/2012 FOR FILIN G & THE RECEIPT DATED 04/10/2012 (PAGE 7 OF PB) ISSUED BY THE CA FOR HIS FEE. THUS THE ITA NO.332(ASR)/2014 A.Y.2011-12 4 ASSESSEE WAS UNDER THE BONAFIDE BELIEF THAT THE REQ UIRED AIR HAS BEEN FILED IN TIME ON THE SAME PATTERN AS OF EARLIER YEA RS. IT IS ALSO ON RECORD THAT THE OFFICE OF THE LD. (I & CL) HAS DULY ACKNOW LEDGED VIDE THEIR LETTER DATED 27/06/2013 (PAGE 5 OF PB), THAT AIR HAS BEEN FILED BY THE ASSESSEE WITHOUT QUOTING HIS PAN. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE DIRECTOR OF INCOME TAX (INTELLIGENCE & CRIMINAL INVESTIGATION) HAS ERRED IN IMPOSING THE PENALTY U/S 271FA AGAINST THE FACTS AND CIRCUMS TANCES OF THE CASE AND HAS FAILED TO APPRECIATE THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT REASONABLE CAUSE FROM FILING THE AIR RETURNS AND T HE PENALTY IMPOSED IS ILLEGAL AND UNJUSTIFIED AND HENCE, IT DESERVES TO B E QUASHED. FURTHER, THE LD. DIRECTOR OF INCOME TAX HAS ERRED IN PASSING A CONSOLIDATED ORDER FOR THE FINANCIAL YEARS 2009-10 & 2011-12; THAT PENALT Y PROCEEDINGS ARE INDEPENDENT IN EACH YEAR AND SEPARATE PENALTY ORDER S ARE REQUIRED TO BE PASSED FOR DIFFERENT YEARS; AND THAT, THEREFORE, TH IS ORDER, AS PASSED, IS ILLEGAL AND AGAINST THE PROVISIONS OF THE I. T. ACT . HE ALSO SUBMITTED THAT THE LD. DIRECTOR OF INCOME TAX HAS ACTED IN AN ARBI TRARY MANNER AND HAD NOT PROPERLY CONSIDERED THE EXPLANATION OF THE ASSE SSEE AND IMPOSED THE PENALTY ON ASSUMPTION AND SUSPICIONS. 4. THE LD. DR, ON THE OTHER HAND, STRONGLY RELIED O N THE IMPUGNED ORDER. 5. WE HAVE HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD. THE FACTS OF THE CASE ARE THAT THE TANDA SUB- ITA NO.332(ASR)/2014 A.Y.2011-12 5 REGISTRAR IS ATTACHED WITH THE TEHSIL DASUYA AND WA S FILING THE AIR JOINTLY WITH DASUYA OFFICE UNDER TAN OF DASUYA OFFI CE UPTO FINANCIAL YEAR 2010-11. THIS IS APPARENT FROM THE LETTER ADDRESSED TO THE DIRECTOR (I&CI) (PB-3) FILED IN RESPONSE TO SHOW CAUSE NOTICE DATE D 25.07.2013. BEFORE THE SHOW CAUSE NOTICE, THE ASSESSEE RECEIVED A DEFI CIENCY LETTER DATED 27.06.2013 FOR THE FINANCIAL YEAR 2011-12, POINTING OUT THAT PAN OF THE ASSESSEE HAD NOT BEEN QUOTED VIDE LETTER DATED 27.0 6.2013 (PB-5). THE ASSESSEE REPLIED TO THIS DEFICIENCY LETTER AND QUO TED HIS PAN. IN THE SHOW CAUSE NOTICE DATED 25.07.2013, IT WAS STATED THAT T HE ASSESSEE HAD NOT FILED THIS AIR FOR THE FINANCIAL YEARS, 2009-10, 20 10-11 & 2011-12. IT WAS REPLIED VIDE PARA 3 AND 4 (PB-3), THAT AIR FOR 20 09-10 & 2010-11 HAD ALREADY BEEN FILED AND THE RELEVANT RECEIPTS HAD A LSO BEEN SUBMITTED. IT WAS FURTHER EXPLAINED THAT THE ASSESSEE WAS NOT HA VING HIS OWN INDEPENDENT TAN AND ACCORDINGLY APPLIED FOR HIS TA N VIDE APPLICATION DATED 08.08.2013 WHICH WAS ALLOTTED ON 28.08.2016. IT WAS STATED IN THE ORDER THAT THE ASSESSEE HAD ALREADY FILED THE AIR FOR THE FINANCIAL YEAR 2011-12 ON 31.08.2013. 6. THE LD. DIRECTOR (I & CI) HAD STATED IN PARA 5 O F THE PENALTY ORDER THAT THE ASSESSEE WAS ADVISED FOR HIS OBLIGATION TO FILE THE AIR FOR THE FINANCIAL YEARS, 2009-10, 2010-11 AND 2011-12 AND T HE REPLY WAS SOUGHT ON OR BEFORE 20.08.2013. IT WAS ON RECORD THAT THE AIR FOR THE FINANCIAL YEARS 2009-10 & 2010-11 WERE ALREADY FILED AND FOR THE YEAR 2011-12, THE SAME WAS FILED SEPARATELY ON 31.08.2013. THEREF ORE, THE SHOW CAUSE ITA NO.332(ASR)/2014 A.Y.2011-12 6 NOTICE OR ADVISORY WAS ISSUED IN A CASUAL MANNER WI THOUT THE VERIFICATION OF THE INFORMATION ON RECORD. 7. SECTION 285 BA(5) SAYS THAT IF THE FILER HAS N OT FILED THE AIR WITHIN SPECIFIED PERIOD, THE PRESCRIBED INCOME TAX AUTHORI TY MAY SERVE UPON A FILER A NOTICE REQUIRING HIM TO FURNISH SUCH STATEM ENT WITHIN THE SPECIFIED PERIOD NOT EXCEEDING 60 DAYS. IF THE FILER FAILS TO FILE THE STATEMENT ON THE ADVISORY FROM THE INCOME TAX AUTHORITY, PENALTY MA Y BE IMPOSED U/S 271FA. 8. FURTHER, THE LD. DIRECTOR (I & CI) HAS HELD IN P ARA 7 OF HIS ORDER RECORDS INDICATE THAT THE FILERS OFFICE HAS BEEN ADVISED SEVERAL TIMES OVER THE PAST FEW YEARS INCLUDING THESE YEARS OF T HE STATUTORY LIABILITY U/S 285BA OF THE I.T. ACT BUT TO NO AVAIL. THIS SHO WS THAT THE OFFICER IS HOLDING THIS OFFICE HAVE CONSISTENTLY SHOWN NO REGA RD FOR THE LAW OF LAND. IT CLEARLY SHOWS THAT THESE OBSERVATIONS WHICH ARE THE BASIS OF IMPOSING THE PENALTY ARE FACTUALLY WRONG. IT HAS BEEN DULY A DMITTED IN THE ORDER THAT THE AIR FOR THE F.Y. 2009-10 IS FILED IN TIME AND IN CASE OF 2010-11, IT IS LATE BY JUST 15 DAYS. THEREFORE, IT CANNOT BE HELD THAT ANY ADVISORY WAS REQUIRED TO BE ISSUED, OR HAS BEEN ISSUED TO TH E ASSESSEE. IN CASE OF F.Y. 2011-12 ONLY ONE ADVISORY DATED 25.7.2013 WAS ISSUED AND THE FILER COMPLIED WITH THE SAID ADVISORY WITH THE SHORTEST P OSSIBLE TIME LESS THAN 40 DAYS. THEREFORE, IT CANNOT BE SAID THAT THERE WA S ANY CONTRAVENTION OF THE ADVISORY ISSUED TO THE ASSESSEE. THE ASSESSEE H AS INVITED ATTENTION OF THE BENCH TO THE RELEVANT AIR (PB-6), WHICH WAS S ENT TO THE CONCERNED ITA NO.332(ASR)/2014 A.Y.2011-12 7 CA VIDE LETTER DATED 21.08.2012 FOR FILING AND THE RECEIPT DATED 04.10.2012 (PB-7) ISSUED BY THE CA FOR HIS FEE. THU S, THE ASSESSEE WAS CORRECTLY UNDER THE BONA FIDE BELIEF THAT THE REQU IRED AIR HAD BEEN FILED IN TIME ON THE SAME PATTERN AS OF EARLIER YEARS. IT IS ALSO ON RECORD THAT OFFICE OF THE LD. DIRECTOR (I & CI) HAS DULY ACKNO WLEDGED VIDE THEIR LETTER DATED 27.06.2013 (PB-5) THAT AIR HAS BEEN FILED BY THE ASSESSEE WITHOUT QUOTING HIS PAN. 9. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, THE GRIEVANCE OF THE ASSESSEE IS FOUND TO BE JUSTIFIED AND IS ACCEPTED AS SUCH. THE LEVY OF PENALTY, ACCORDINGLY, IS DELETED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/0 7/ 2016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 11/07/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:THE SUB REGISTRAR, TANDA. 2. THE DIRECTOR OF INCOME TAX (I&CI), CHANDIGARH 3. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.