M/s Sub Registrar/Jt. Sub Registrar, Dhuri V. Director of Income Tax (CIB), Chandigarh

ITA 440/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9084 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 27-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTALDR
• Keywords: Opportunity of being heard; Bonafide belief; Period of limitation; 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. 440 TO 442 & 444/CHD/2016 A.Y: 2005-06,2006-07,2009-10 & 2008-09 SUB REGISTRAR/JT. SUB REGISTRAR, VS THE DIT (CIB), DHURI. CHANDIGARH. TAN: JLDS08157C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGA L RESPONDENT BY : SHRI S.K.MITTAL,DR DATE OF HEARING : 24.08.2016 DATE OF PRONOUNCEMENT : 14.09.2016 O R D E R 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. 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE FINDINGS OF AUTHORITIES BELOW. 3. ACCORDING TO THE OFFICE, ALL THE APPEALS OF THE ASSESSEE ARE TIME BARRED BY 10 DAYS. THE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY EXPLAINING THE REIN 2 THAT THE SUB REGISTRAR SHRI DALBIR BHARDWAJ HAD BEE N SUFFERING FROM DEPRESSION/BLOOD PRESSURE FOR THE LA ST SOME MONTHS AND DOCTOR HAD ADVISED HIM BED RET ON ACCOUNT OF ABOVE REASONS, THEREFORE, APPEALS COULD NOT BE FILED WITHIN TIME. CERTIFICATE OF THE DOCTOR IS FILED. THE ASSESSEE, THEREFORE, PRAYED THAT DELAY IN FILIN G APPEALS MAY BE CONDONED. THE LD. DR DID NOT OBJECT TO THE SAME. CONSIDERING EXPLANATION OF THE ASSESSEE AND MATERIAL ON RECORD, I AM SATISFIED THAT ASSESSEE WA S PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEA LS WITHIN THE PERIOD OF LIMITATION. THE DELAY IN FILI NG THE APPEALS IS, THEREFORE, CONDONED. 4. BRIEF FACTS OF THE CASE ARE THAT AS PER PROVISIO NS OF SECTION 285BA OF THE ACT, THE SUB REGISTRAR (ASSESS EE) WAS REQUIRED TO FILE ANNUAL INFORMATION RETURNS FOR THE FINANCIAL YEAR UNDER APPEALS FOR HIS JURISDICTION. THE ASSESSEE HAD FAILED TO FILE THE AIR ON TIME AND DEL AYED BY NUMBER OF DAYS AS HAVE BEEN MENTIONED IN THE IMPUGNED ORDERS. THE ASSESSING OFFICER NOTED IN TH E PENALTY ORDER THAT JOINT SUB REGISTRAR APPEARED FOR THE ASSESSEE AND FILED PROOF OF MAILING APPLICATION FOR ALLOTMENT OF TAN AND REQUEST FOR FURTHER TIME TO FI LE THE RETURNS AFTER ALLOTMENT OF TAN. LATER ON, NAIB TEH SILDAR APPEARED AND FURNISHED PROOF REGARDING FILING OF TH E AIR INFORMATION WHICH WAS FOUND TO BE LATE. THE ASSESS ING OFFICER ACCORDINGLY, LEVIED THE PENALTY UNDER THE A BOVE PROVISIONS. 3 5. THE ASSESSEE SUBMITTED BEFORE LD. CIT(APPEALS) T HAT DELAY IN FILING THE RETURN FOR ASSESSMENT YEARS ABO VE WAS DUE TO LACK OF KNOWLEDGE AND PREPARATION OF DET AILS 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 F ILE THE SAID RETURNS ON TIME. THERE IS NO TAX LIABILIT Y UPON THE ASSESSEE. THE LD. CIT(APPEALS), HOWEVER, DISMI SSED THE APPEAL OF THE ASSESSEE. THE LD. CIT(APPEALS) A LSO NOTED THAT APPEALS ARE TIME BARRED AND NO REQUEST F OR CONDONATION OF DELAY HAVE BEEN MADE IN THIS REGARD. THEREFORE, APPEALS OF THE ASSESSEE WERE DISMISSED. 6. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT ON THE SAME FACTS AND CIRCUMSTANCES, ITAT (SMC) BENCH IN THE GROUP CASES OF VARIOUS SUB REGISTRARS/JOINT SUB REGISTRARS, AMARGARH, DHURI AN D MALERKOTLA IN ITA 406/2016 & OTHERS VIDE ORDER DATE D 01.08.2016 RESTORED THE MATTER IN ISSUE TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO RE-DECIDE THIS ISSUE IN ACCORDANCE WITH LAW. COPY OF THE ORDER IS PLACE D ON RECORD AND PROVIDED TO LD. DR. HE HAS, THEREFORE, SUBMITTED THAT ISSUE ON IDENTICAL FACTS IS COVERED BY ABOVE ORDER OF THE TRIBUNAL, THEREFORE, THESE APPEA LS MAY ALSO BE RESTORED TO THE FILE OF ASSESSING OFFIC ER FOR RE-CONSIDERATION. THE LD. DR, HOWEVER, RELIED UPON 4 ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT APPEALS OF THE ASSESSEE MAY BE DISMISSED. 7. AFTER CONSIDERING RIVAL SUBMISSIONS, I FIND THAT IDENTICAL ISSUE WAS CONSIDERED BY ITAT SMC BENCH IN THE CASE OF SUB REGISTRAR/JOINT SUB REGISTRAR, AMAR GARH ETC. V DIT (CIB) CHANDIGARH ETC. IN GROUP CASES (SU PRA) AND VIDE ORDER DATED 01.08.2016, THE IDENTICAL MATT ER IN ISSUE HAVE BEEN RESTORED TO THE FILE OF ASSESSING O FFICER FOR RE-CONSIDERATION. THE FINDINGS OF THE TRIBUNAL IN PARA 5 TO 6 OF THIS ORDER ARE REPRODUCED AS UNDER : 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM O F 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 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 5 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-T AX ACT, 1961, FOR FAILURE TO DEDUCT TAX AT SOURCE, IS NOT A UTOMATIC. IN ORDER TO BRING IN APPLICATION OF SECTION 271 C, IN THE BACKDROP OF THE OVERRIDING NON OBSTANTE CLAUSE IN S ECTION 273B, ABSENCE OF REASONABLE CAUSE, EXISTENCE OF WHICH HAS TO BE ESTABLISHED, IS A SINE QUA NON. BEFORE LEVYING PENA LTY, THE CONCERNED OFFICER IS REQUIRED TO FIND OUT THAT EVEN IF THERE WAS ANY FAILURE TO DEDUCT TAX AT SOURCE, THE SAME WAS W ITHOUT REASONABLE CAUSE. THE INITIAL BURDEN IS ON THE ASSE SSEE TO SHOW THAT THERE EXISTS REASONABLE CAUSE WHICH WAS T HE REASON FOR THE FAILURE. THEREAFTER, THE OFFICER HAS TO CONSIDE R WHETHER THE EXPLANATION OFFERED BY THE ASSESSEE OR OTHER PERSON AS REGARDS THE REASON FOR FAILURE, WAS ON ACCOUNT OF REASONABL E CAUSE . THE ASSESSEE IS ABLE TO EXPLAIN PRIMA-FACIE REASONA BLE CAUSE AND THEREFORE, ASSESSEE WAS REQUIRED TO FILE SOME 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 AS SESSEE MAY PRODUCE ADEQUATE EVIDENCE OR MATERIAL BEFORE ASSESSING OFFICER IN SUPPORT OF THE CONTENTION TO ESTABLISH REASONABLE CAUSE AS PER LAW. 6. IN THE RESULT, ALL APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6 8. I, THEREFORE, FOLLOWING THE ABOVE ORDER IN THE C ASE OF SUB REGISTRAR/JOINT SUB REGISTRAR, AMARGARH ETC. (SUPRA), FIND THAT THE ISSUE IS IDENTICAL, THEREFOR E, FOLLOWING THE REASONS FOR DECISION IN THE ABOVE CAS E, I SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTO RE THE MATTER IN ISSUE TO THE FILE OF ASSESSING OFFICER WI TH DIRECTION TO RE-DECIDE THIS ISSUE IN ACCORDANCE WIT H LAW BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. THE ASSESSEE MAY PRODUCE ADEQUATE EVIDENCE OR MATERIAL BEFORE ASSESSING OFFI CER IN SUPPORT OF THE CONTENTION TO ESTABLISH REASONABL E CAUSE AS PER LAW. 9. IN THE RESULT, ALL APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED : 14 TH SEPTEMBER,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH