Sub Registrar/Jt. Sub Registrar, Amargarh V. Director of Income Tax (CIB), Chandigarh

ITA 406/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9213 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 21-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTALDR
• Assessee Lawyers: YOGESH MONGA
• Keywords: Opportunity of being heard; Bonafide belief; Non-deduction of tax; Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NOS. 406 TO 410/CHD/2016 A.Y: 2005-06 TO 2009-10 SUB REGISTRAR/JT. SUB REGISTRAR, VS THE DIT (CIB), AMARGARH. CHANDIGARH. TAN: JDLDJ02014F & ITA NOS. 594 TO 598/CHD/2016 A.Y: 2005-06 TO 2009-10 SUB REGISTRAR/JT. SUB REGISTRAR, VS THE DIT (CIB), DHURI. CHANDIGARH. TAN: PTLJ11639F & ITA NOS. 599 TO 606/CHD/2016 A.Y: 2005-06 TO 2012-13 SUB REGISTRAR/JT. SUB REGISTRAR, VS THE DIT (CIB), MALERKOTLA. CHANDIGARH. TAN: PTLT11775B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI YOGESH MONGA RESPONDENT BY : SHRI S.K.MITTAL,DR DATE OF HEARING : 27.07.2016 DATE OF PRONOUNCEMENT : 01.08.2016 O R D E R THIS ORDER SHALL DISPOSE OF ALL THE ABOVE APPEALS B Y DIFFERENT ASSESSEES CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271FA OF THE INCOME TAX ACT. 2 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE FINDINGS OF AUTHORITIES BELOW. THE APPEALS ARE DECIDED AS UNDER. ITA 406/2016 TO 410/2016 ( A.YS:2005-06 TO 2009-10) (SUB REGISTRAR/JT. SUB REGISTRAR, AMARGARH ) 3. THESE APPEALS BY ASSESSEE ARE DIRECTED AGAINST COMMON ORDER DATED 04.01.2016 OF LD. CIT(APPEALS)-2 LUDHIANA. BRIEF FACTS OF THE CASE ARE THAT AS PER PROVISIONS OF SECTION 285BA OF THE ACT, SUB REGISTR AR (ASSESSEE) WAS REQUIRED TO FILE THE ANNUAL INFORMAT ION RETURNS FOR THE FINANCIAL YEARS 2004-05 TO 2008-09 FOR HIS JURISDICTION. THE ASSESSEE HAD FAILED TO FILE THE AIR ON TIME AND DELAYED BY NUMBER OF DAYS AS HAVE BEEN MENTIONED IN THE IMPUGNED ORDERS. THE ASSESSING OFFICER NOTED IN THE PENALTY ORDER THAT JOINT SUB REGISTRAR HAD SENT A REPLY BY POST WHICH WAS NOT FO UND SATISFACTORY AND THAT SHRI VIKRAMJIT SINGH FROM THE OFFICE OF JOINT SUB REGISTRAR APPEARED AND CASE WAS PARTLY DISCUSSED WITH HIM. LATER ON, NAIB TEHSILDA R APPEARED ON BEHALF OF THE ASSESSEE AND FURNISHED PR OOF REGARDING FILING OF THE AIR INFORMATION WHICH WAS F OUND TO BE LATE. THE ASSESSING OFFICER, ACCORDINGLY, LE VIED THE PENALTY UNDER THE ABOVE PROVISIONS. 4. THE ASSESSEE SUBMITTED BEFORE LD. CIT(APPEALS) T HAT DELAY IN FILING THE RETURN FOR ASSESSMENT YEARS ABO VE WERE DUE TO LACK OF KNOWLEDGE AND PREPARATION OF DE TAILS 3 AND PARTICULARS REQUIRED FOR FILING THE RETURN, AS IT WAS NEW DUTY FOR HIM. THE ASSESSEE FURTHER EXPLAINED T HAT NEWLY APPOINTED CLERK ON CONCERNED DUTY, UNDER BONAFIDE BELIEF AND HAVING RUSH OF WORK, COULD NOT FILE THE SAID RETURN ON TIME. THERE IS NO TAX LIABILITY UPON THE ASSESSEE. THE LD. CIT(APPEALS), HOWEVER, DISMI SSED THE APPEAL OF THE ASSESSEE. THE LD. CIT(APPEALS) A LSO NOTED THAT APPEAL IS TIME BARRED AND NO REQUEST FOR CONDONATION OF DELAY HAVE BEEN MADE IN THIS REGARD, THEREFORE, APPEALS OF THE ASSESSEE WERE DISMISSED. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM OF THE VIEW THE MATTER REQUIRES RE-CONSIDERATION AT THE LE VEL OF THE ASSESSING OFFICER. THE ASSESSEE HAS MADE PART COMPLIANCE BEFORE ASSESSING OFFICER AND ACCORDING T O ASSESSING OFFICER, THE AIR RETURNS ARE FILED WITH D ELAY. THE LD. COUNSEL FOR THE ASSESSEE REITERATED SUBMISS IONS MADE BEFORE LD. CIT(APPEALS) AND ALSO SUBMITTED THA T THE REQUISITE INFRASTRUCTURE WAS NOT AVAILABLE WITH THE ASSESSEE TO FILE THE AIR INFORMATION ONLINE, THEREF ORE, RETURNS WERE FILED MANUALLY AND THIS FACT WAS EXPLA INED TO THE ASSESSING OFFICER AS WELL. HE HAS SUBMITTED THAT EVEN FACTS HAVE NOT BEEN TAKEN INTO CONSIDERATION A ND FURTHER, LD. CIT(APPEALS) HAS NOT GIVEN ANY OPPORTU NITY TO FILE APPLICATION FOR CONDONATION OF DELAY SPECIF ICALLY. ON GOING THROUGH THE IMPUGNED ORDER, IT IS CLEAR TH AT ASSESSEE MADE PART COMPLIANCE BEFORE ASSESSING OFFI CER AND LD. COUNSEL FOR THE ASSESSEE FROM THE DETAILS 4 SUBMITTED IN THE PAPER BOOK EXPLAINED THAT RETURNS WERE FILED MANUALLY BELATEDLY BECAUSE REQUIRED INFRASTRU CTURE WAS NOT AVAILABLE WITH SUB REGISTRAR TO FILE RETURN S ONLINE. FURTHER, THE ORDER OF THE LD. CIT(APPEALS) DOES NOT DISCLOSE IF ANY OPPORTUNITY WAS GIVEN TO THE AS SESSEE TO FILE APPLICATION FOR CONDONATION OF DELAY. FURTH ER, WHEN APPEALS HAVE BEEN DECIDED ON MERITS, IT SHOULD NOT BE LATER ON DISMISSED BEING TIME BARRED IN LIMINE. THE ASSESSING OFFICER DID NOT CONSIDER THAT NO LOSS TO REVENUE HAVE BEEN CAUSED. THE EXPLANATION OF THE ASSESSEE BEFORE ASSESSING OFFICER/LD. CIT(APPEALS) HAVE NOT BEEN SPECIFICALLY DEALT WITH. HON'BLE DELHI HI GH COURT IN THE CASE OF WOODWARD GOVERNOR INDIA P.LTD. V CIT & OTHERS 253 ITR 745 HELD AS UNDER : LEVY OF PENALTY UNDER SECTION 271C OF THE INCOME-TAX ACT, 1961, FOR FAILURE TO DEDUCT TAX AT SOURCE, IS NOT AU TOMATIC. IN ORDER TO BRING IN APPLICATION OF SECTION 271 C, IN THE BACKDROP OF THE OVERRIDING NON OBSTANTE CLAUSE IN SECTION 273B, ABSENCE OF REASONABLE CAUSE, EXISTENCE OF WHICH HAS TO BE ESTA BLISHED, IS A SINE QUA NON. BEFORE LEVYING PENALTY, THE CONCERNED OF FICER IS REQUIRED TO FIND OUT THAT EVEN IF THERE WAS ANY FAI LURE TO DEDUCT TAX AT SOURCE, THE SAME WAS WITHOUT REASONAB LE CAUSE. THE INITIAL BURDEN IS ON THE ASSESSEE TO SHOW THAT T HERE EXISTS REASONABLE CAUSE WHICH WAS THE REASON FOR THE FAILU RE. THEREAFTER, THE OFFICER HAS TO CONSIDER WHETHER THE EXPLANATION OFFERED BY THE ASSESSEE OR OTHER PERSON AS REGARDS THE REASON FOR FAILURE, WAS ON ACCOUNT OF REASONABLE CAUSE . THE ASSESSEE IS ABLE TO EXPLAIN PRIMA-FACIE REASONA BLE CAUSE AND THEREFORE, ASSESSEE WAS REQUIRED TO FILE SOME 5 EVIDENCE OR MATERIAL ALONGWITH THE SAME. SINCE THE ASSESSEE IS A GOVERNMENT AGENCY THEREFORE, ONE MORE CHANCE SHOULD BE GIVEN TO THE ASSESSEE TO PROVE REASONABLE CAUSE BEFORE THE ASSESSING OFFICER. THEREFORE, IN MY VIEW THE MATTER REQUIRES RE- CONSIDERATION AT THE LEVEL OF THE ASSESSING OFFICER . I, ACCORDINGLY, SET ASIDE THE ORDERS OF AUTHORITIES BE LOW AND RESTORE THE MATTER IN ISSUE TO THE FILE OF ASSE SSING OFFICER WITH DIRECTION TO RE-DECIDE THIS ISSUE IN ACCORDANCE WITH LAW BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE MAY PRODUCE ADEQUATE EVIDENCE OR MATERIAL BEFORE ASSESSING OFFICER IN SUPPORT OF THE CONTENTI ON TO ESTABLISH REASONABLE CAUSE AS PER LAW. 6. IN THE RESULT, ALL APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ITA 594/2016 TO 598/2016 ( A.YS:2005-06 TO 2009-10) (SUB REGISTRAR/JT. SUB REGISTRAR,DHURI) 7. ALL THE APPEALS BY ASSESSEE ARE DIRECTED AGAINST COMMON ORDER OF LD. CIT(APPEALS)-2 LUDHIANA DATED 04.01.2016 FOR ABOVE ASSESSMENT YEARS CHALLENGING T HE LEVY OF PENALTY UNDER SECTION 271FA OF THE INCOME T AX ACT. 8. ACCORDING TO THE OFFICE REPORT, THE APPEALS ARE TIME BARRED BY 30 DAYS. THE ASSESSEE HAS FILED APPLICAT ION 6 FOR CONDONATION OF DELAY IN ALL THE APPEALS EXPLAIN ING THEREIN THAT THE COUNSEL WHO WAS APPEARING BEFORE T HE AUTHORITIES BELOW HAS BEEN CHANGED AND NEW COUNSEL WAS APPOINTED BY THE SUB REGISTRAR WITH ADVICE TO F ILE THE APPEAL BEFORE TRIBUNAL AND IN THE PROCESS OF SELECTING NEW COUNSEL AND GETTING THE RELEVANT DOCUMENTS FROM THE EARLIER COUNSEL, THERE WAS A NOMINAL DELAY IN FILING THE APPEALS. THE ASSESSEE, THEREFORE, PLEADED THAT DELAY IN FILING THE APPEALS MAY BE CONDONED. THE LD. DR DID NOT OBJECT TO THE SAME . 9. CONSIDERING THE ABOVE EXPLANATION OF THE ASSESSE E, I AM SATISFIED THAT ASSESSEE WAS PREVENTED BY SUFFI CIENT CAUSE FROM FILING THE APPEALS WITHIN TIME. THE NOM INAL DELAY IN FILING THE APPEALS IS CONDONED. 10. IN ALL THE APPEALS, ISSUE IS SAME WHERE ASSESSE E FILED THE ANNUAL INFORMATION RETURNS BELATEDLY. TH E ISSUE IS SAME AS HAVE BEEN CONSIDERED IN THE CASE O F SUB REGISTRAR, AMARGARH (SUPRA). FOLLOWING THE SAM E ORDER, I SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER IN ISSUE TO THE FILE OF ASSESSIN G OFFICER WITH DIRECTION TO RE-DECIDE THE MATTER IN I SSUE AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS IS DIRECTED IN THE CASE OF SUB REGISTRA R, AMARGARH. 11. ALL THE APPEALS OF THE ASSESSEE ARE, THEREFORE, ALLOWED FOR STATISTICAL PURPOSES. 7 ITA 599/2016 TO 606/2016 ( A.YS:2005-06 TO 2012-13) (SUB REGISTRAR/JT. SUB REGISTRAR, MALERKOTLA) 12. ALL THE APPEALS BY ASSESSEE ARE DIRECTED AGAINS T COMMON ORDER OF LD. CIT(APPEALS)-2 LUDHIANA DATED 04.01.2016, 08.12.2015 FOR THE ABOVE ASSESSMENT YEA RS CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271FA OF THE INCOME TAX ACT. 13. THE APPEALS OF THE ASSESSEE, EXCEPT ITA 604/201 6 AND ITA 606/2016, ARE BARRED BY 28 DAYS AND THOSE T WO APPEALS ARE TIME BARRED BY 67 DAYS. THE EXPLANATIO N OF THE ASSESSEE IS SAME AS HAVE BEEN CONSIDERED IN THE CASE OF SUB REGISTRAR, DHURI. FOLLOWING THE REASON S FOR CONDONATION OF DELAY IN THE CASE OF SUB REGISTRAR, DHURI (SUPRA), I CONDONE THE DELAY IN FILING APPEALS BY T HE ASSESSEE BEFORE THE TRIBUNAL. 14. THE ISSUE ON MERIT IS SAME IN THESE APPEALS AS HAVE BEEN CONSIDERED IN THE CASE OF SUB REGISTRAR, AMARG ARH (SUPRA). FOLLOWING THE REASONS FOR DECISION IN THE CASE OF SUB REGISTRAR, AMARGARH (SUPRA), I SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE APPEALS OF THE ASSESSEE TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO RE-DECIDE THE MATTER IN ISSUE IN ACCOR DANCE 8 WITH LAW AS IS DIRECTED IN THE CASE OF SUB REGISTRA R, AMARGARH (SUPRA) BY GIVING REASONABLE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. 15. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 16. IN THE RESULT, ALL APPEALS OF DIFFERENT ASSESSE ES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED : 1 ST AUGUST,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH