The Agrasen Nagari Sahakari Bank Limited, Akola V. Director of Income Tax-(CIB),

ITA 42/NAG/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84659 (ITAT-NAGPUR)
• Duration Of Justice: 3 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 14-03-2011
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ./ITA NO.42/NAG/2011 ( AY: 2010 - 2011 ) THE AGRASEN NAGARI SAHAKARI BANK LTD., 1 ST FLOOR, BHIRAD COMPLES, GANDHI ROAD, AKOLA 444001. (M.S) / VS. DIRECTOR OF INCOME TAX - (CIB), PUNE. ./ PAN : NGPTO0856C ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : NONE (WRITTEN SUBMISSIONS) / RESPONDENT BY : SHRI A.R. NINAWE, JCIT / DATE OF HEARING : 03.09.2014 / DATE OF PRONOUNCEMENT : 05 .09.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 14.3.2011 IS AGAINST THE ORDER OF THE DIRECTOR OF INCOME TAX (CIB), PUNE DATED 28.1.2011 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE LD DIT (CIB), PUNE HA S ERRED IN IMPOSING PENALTY U/S 271EA FOR DELAY IN FURNISHING OF AIR RETURN. 2. THE LD DIT (CIB), PUNE OUGHT TO HAVE CONSIDERED THAT THERE WAS REASONABLE CAUSE AS PROVIDED U/S 273B WITH THE APPELLANT FOR DELAY IN FURNISHING OF AIR RETURN. 3. THE LD DIT (CIB), PUNE HAS ERRED IN TREATING PENAL PROVISIONS U/S 271FA TO BE MANDATORY AND ACCORDINGLY HAS ERRED IN IMPOSING THE PENALTY AT RS. 14,500/ - . 4. THAT THE PENALTY LEVIED IS EXCESSIVE, ARBITRARY AND WITHOUT PROPER BASIS. 5. THAT THE ORDER IS BAD IN LAW AND AGAINST THE FACTS OF THE CASE. 3. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THE LEVY OF PENALTY OF RS. 14,500/ - U/S 271FA OF THE ACT. THERE IS A DELAY OF 145 DAY S IN FURNISHING THE AIR RETURN UNDER SECTION 285BA OF THE ACT. THE PENALTY WAS LEVIED BY THE DIRECTOR OF INCOME TAX - (CIB), PUNE. PARA 4 OF THE ORDER OF THE DIT IS RELEVANT IN THIS REGARD WHICH IS REPRODUCED HERE UNDER: 2 4. I HAVE CONSIDERED THE FACTS AND PERUSED THE RECORDS. THE PROVISIONS OF SECTION 285BA ARE NOT NEW. THEY WERE I NTRODUCED IN THE STATURE W.E.F. 1.4.2004 BY THE FINANCE ACT, 2003 . IT IS SEEN FROM THE RECORDS THAT THE BANK HAD NOT FILED AIR FOR THE FYS 2007 - 08 AND 2008 - 09 , IT IS FURTHER APPARENT THAT THE AIR WAS FILED FOR THE FY 2009 - 2010 ONLY AFTER A SHOW CAUSE WAS I SSUED BY THIS OFFICE. THIS YEAR, THERE WAS BEEN ON INORDINATE DELAY IN FILING THE AIR , SECTION 285BA READ WITH PROVISO TO SUB - RULE (3) OF RULE 114E MAKES IT CLEAR THAT W.E.F. 1.12.2004, THE INCOME TAX (TWENTY FIRST AMENDMENT RULES) 2005 MANDATE THAT THE A GENCY AUTHORIZED TO RECEIVED AIR ON BEHALF OF DIT (CIB) IS NSDL. THE ONUS WAS ON THE BANK TO ENSURE THAT IT FULFILLED ITS STATUTORY RESPONSIBILITIES. IT IS THUS, HELD THAT THE BANK HAS FAILED TO DISCHARGE ITS STATUTORY DUTIES AS LAID DOWN U/S 285BA(4) OF THE INCOME TAX ACT, 1961 READ WITH RULE 114E. CONSIDERING THESE FACTS, I AM OF THE VIEW THAT PENALTY U/S 271FA IS LEVIABLE . 4. BEFORE US, DESPITE THE SERVICE OF NOTICE ON THE ASSESSEE , NONE APPEARED TO REPRESENT THE CASE OF THE ASSESSEE. HOWEVER, ASSESSEE FILED WRITTEN SUBMISSIONS AND THE GIST OF THE SUBMISSIONS READS AS UNDER: 1. BEFORE THE DUE DATE OF FILING OF AIR RETURN, APPELLANT HAS PREPARED AND FILLED IN AIR RETURN IN PAPER FORMAT AND TRIED TO SUBMIT THE SAME WITH THE IT DEPARTMENT, AKOLA IN PAPER FORMAT, BUT DEPARTMENT HAS REFUSED TO ACCEPT THE SAME AND SUGGESTED THE APPELLANT TO SUBMIT IN NSDL TIN FACILITATION CENTRE . 2. APPELLANT HA THEN TRIED TO SUBMIT THE SAID AIR RETURN IN PAPER FORMAT TO THE NSDL T IN FACILITATION CENTRE , AKOLA BUT THEY HAVE REFUSED TO ACCEPT THE SAME AND SUGGESTED THE APPELLANT TO SUBMIT THE SAME IN COMPUTER READABLE MEDIA. 3. THEREAFTER, APPELLANTS COUNSEL HAS PURCHASED A AIR RETURN PREPARATION SOFTWARE AND THEN FEEDED THE REQUISI TE INFORMATION IN THE AIR RETURN FORM NO.61A ON COMPUTER SOFTWARE. WHILE FEEDING, APPELLANT WAS NOT AWARE AS TO EXACTLY WHAT HAS TO BE FILLED IN THE COLUMN OF FOLIO NO. & DATE OF TRANSACTION OF THE AIR RETURN FORM NO.61A, AND ALSO THERE WAS VARIOUS ERRORS IN VALIDATION UTILITY OF FILE. HENCE, APPELLANT HAS ENQUIRED FROM VARIOUS AVAILABLE SOURCES SUCH AS, AAYAKAR SAMPARK KENDRA (ASK) NOIDA, NSDL BRANCH OFFICES AT AKOLA & PUNE, BUT CORRECT INFORMATION COULD NOT BE GATHERED TILL 21.1.2011 BY KEEPING THE COLU MN OF FOLIO NO. BLANK AND DATE OF TRANSACTION TO BE 31.3.2010 (EVEN THOUGH THERE WERE SERIES OF TRANSACTIONS ON VARIOUS DATES OF THE SAME PROPERTY). THUS, THERE OCCURRED DELAY IN FURNISHING AIR RETURN. THERE WAS NO MALAFIDE INTENTION IN LATE SUBMISSION OF AIR RETURN, BUT APPELLANT WAS PRECLUDED FROM THE TECHNICAL / PRACTICAL REASONS NARRATED HEREINABOVE. THUS, THERE WAS SUFFICIENT REASONABLE CAUSE WITH THE APPELLANT AS PROVIDED U/S 271B OF THE IT ACT, 1961 . IT IS PERTINENT TO NOTE THAT APPELLANT HAS NOT F URNISHED AIR RETURN FOR FY 2008 - 2009, SINCE, THERE WERE NO TRANSACTIONS AS SPECIFIED IN RULE 14E OF THE IT RULES, 1962. 3 5. ON THE OTHER HAND, LD DR HEAVILY RELIED ON THE ORDER OF THE DIT AND MENTIONED THAT THE FACT OF DELAY IS UNDISPUTED . THE INTENTION IN MAKING SUCH DELAY WAS NARRATED IN THE WRITTEN SUBMISSIONS BUT THEY SUFFER FROM EVIDENCES. THEREFORE, THE SAME IS REQUIRED TO BE DISMISSED. FURTHER, LD DR PRAYED FOR CONFIRMING THE PENALTY LEVIED BY THE DIT. 6. WE HAVE HEARD THE LD DR AND PERUSED THE WRITTEN SUBMISSIONS OF THE ASSESSEE AS WELL AS THE ORDERS OF THE REVENUE AUTHORITIES AND THE RELEVANT MATERIAL PLACED BEFORE US. AFTER HEARING THE LD DR AND ON PERUSAL OF THE WRITTEN SUBMISSIONS OF THE ASSESSEE, WE FIND THAT THOUGH THE CAUSE OF DELAY IN FILING THE AIR RETURN IS NOT DELIBERATED , THE SAME IS LACK OF EVIDENCE AND THE ONUS IS ON THE ASSESSEE TO FURNISH THE EVIDENCES IN SUPPORT OF ITS CLAIM . THEREFORE, THE ACTION TAKEN BY THE DIT (CIB) IS FAIR AND REAS ON ABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, THE PENALTY LEVIED BY THE DIT IS CONFIRMED AND THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCE D IN THE OPEN COURT ON 5 T H SEPTEMBER, 2014 . SD/ - SD/ - (VIVEK VARMA) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER NAGPUR 5 /09/2014 .../ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. () / THE CIT(A) - 4. / CIT 5. , / DR, ITAT, NAGPUR. 6. / GUARD FILE . 4 //TRUE COPY// / BY ORDER, ( SR. PRIVATE SECRETARY) / ITAT, NAGPUR