The Sub Registrar (Tehsildar), Yamunanagar V. DIT (CIB), Chandigarh

ITA 79/CHANDI/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68557 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 22-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 24-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S K MUKHI
• Keywords: Period of limitation; Reasonable cause; Ignorance of law
• Section: 273B; 133(6); 6; 12; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA, JUDICIAL MEMBER ITA NOS. 431 TO 434/CHD/2012 A.YS. : 2006-07 TO 200 9-10 THE SUB REGISTRAR, VS THE DIRECTOR OF INCOME TAX(C IB), (TEHSILDAR), SECTOR 17-C, JAGADHARI, CHANDIGARH. DISTT. YAMUNA NAGAR. PAN NO.RTKS-14260B (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI S.K. MUKHI RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 13.08.2013 & ITA NOS. 79 TO 82/CHD/2012 A.YS. : 2006-07 TO 200 9-10 THE SUB REGISTRAR, VS THE DIRECTOR OF INCOME TAX(C IB), (TEHSILDAR), SECTOR 17-C, BILASPUR, CHANDIGARH. DISTT. YAMUNA NAGAR. PAN NO.RTKT-0310B (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAJEEV SHARMA RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 22.08.2013 & ITA NOS. 89 TO 92/CHD/2012 A.YS. 2006-07 TO 2009 -10 THE SUB REGISTRAR, VS THE DIRECTOR OF INCOME TAX(C IB), CHHACHHRAULI, SECTOR 17-C, DISTT. YAMUNANAGAR. CHANDIGARH. PAN NO.RTKS-14261C (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAJEEV SHARMA RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 17.09.2013 DATE OF PRONOUNCEMENT : 30.10.2013 2 O R D E R PER SUSHMA CHOWLA, J.M. THE BUNCH OF APPEALS HAVE BEEN FILED BY DIFFERENT A SSESSEES AGAINST THE DIFFERENT ORDERS OF THE CIT(APPEALS) RE LATING TO ASSESSMENT YEARS VARYING BETWEEN 2006-07 TO 2009-10 RESPECTIVELY AGAINST THE PENALTY LEVIED UNDER SECTION 271FA OF T HE INCOME TAX ACT, 1961 ( THE ACT FOR SHORT ). ALL THESE APPEAL S RELATING TO DIFFERENT SUB REGISTRARS ON SIMILAR ISSUE WERE HEAR D TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FO R THE SAKE OF CONVENIENCE. REFERENCE IS BEING MADE TO THE FACTS IN DIFFERENT SETS OF APPEALS IN ORDER TO ADJUDICATE THE ISSUE. 2. THE ASSESSEE HAS RAISED COMMON GROUNDS OF APPEAL IN ALL THE ABOVESAID APPEALS BUT REFERENCE IS BEING MADE TO TH E GROUNDS OF APPEAL AS RAISED IN ITA NO. 431/CHD/2012, WHICH REA D AS UNDER : 1. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN CO NCURRING WITH THE ACTION OF THE A.O. IN UPHOLDING THE PENALTY LEVIED U/S 271FA OF THE INCOME TAX ACT, 1961 WITHOUT PASSING A SPEAKING ORDER AND WITHOUT APPRECIATING THE FACTS OF THE PRESENT C ASE WHICH IS AGAINST THE ESTABLISHED PRINCIPLES OF LAW, SO THAT SO THE ORDERS OF ID. CIT (A) ARE ILLEGAL, ARBITRARY AND BAD IN LAW. 2. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN CONCUR RING WITH THE A.O. AND THEREBY CONFIRMING THE LEVY OF PENALTY WIT HOUT CONSIDERING THE FACT THAT IT IS A CASE OF GOVERNMEN T UNDERTAKING AND THERE BEING NO MALAFIDE INTENTIONS OR INTENTION AL MISTAKE OR DELAY BUT FOR REASONABLE CAUSE AND THERE BEING ONLY TECHNICAL BREACH AND ALSO THERE BEING NO REVENUE LOSS TO THE DEPARTMENT AND THUS THE ORDERS OF CIT (A) ARE BAD IN LAW AND R EQUIRES DUE CONSIDERATION BY THIS HON'BLE BENCH. 3. THAT WITHOUT PREJUDICE TO ABOVE THE APPELLAN T DISPUTES THE VERY FINDINGS OF THE A.O. AND ITS CONFIRMATION BY T HE ID. CIT (A) WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES, E VIDENCES ON RECORD WHICH IS ALSO AGAINST THE PRINCIPLES OF NATU RAL JUSTICE. 4. THAT WITHOUT PREJUDICE TO ABOVE THE APPELLANT DISPUTES THE QUANTUM OF PENALTY SO LEVIED AS HIGHLY EXCESSIVE AN D ARBITRARY. 5. THAT FINDINGS OF LD. CIT (A) ARE PERVERSE AN D THUS NEEDS TO BE QUASHED BY THE INTERFERENCE OF THIS HON'BLE BENC H. 3 3. THE ONLY ISSUE RAISED IN ALL THE APPEALS IS AG AINST THE LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT. 4. THE FIRST SET OF APPEALS IS IN ITA NOS. 431 TO 4 34/CHD/2012, THE APPEALS FILED BY SUB REGISTRAR, JAGADHARI, DIST T. YAMUNA NAGAR. THE BRIEF FACTS OF THE CASE ARE THAT UNDER SECTION 285 BA(1) OF THE ACT CERTAIN PERSONS ARE REQUIRED TO FI LE AN ANNUAL INFORMATION RETURN (AIR) IN RESPECT OF SPECIFIED FI NANCIAL TRANSACTIONS REGISTERED OR RECORDED BY HIM DURING T HE FINANCIAL YEAR. THE NATURE OF THE TRANSACTIONS AND THE THRES HOLD VALUE FOR INFORMATION TO BE SUBMITTED IN THE AIR ARE PRESCRIB ED IN THE TABLE (ITEM NO.6) UNDER RULE 116E OF THE INCOME TAX RULES , 1962. THE FORM IN WHICH THE RETURN IS REQUIRED TO BE FILED IS FORM NO.61A. THE CENTRAL BOARD OF DIRECT TAXES HAS AUTHORIZED M/ S NATIONAL SECURITIES DEPOSITORIES LTD. (NSDL) AS THE AGENCY A UTHORIZED TO RECEIVE AIRS ON BEHALF OF THE COMMISSIONER OF INCOM E TAX (CENTRAL INFORMATION BRANCH). THE FILER CAN ALSO F URNISH THE AIR WITH THE FACILITATION CENTRES OF NSDL, LOCATED IN D IFFERENT PARTS OF THE COUNTRY. ITEM NO.6 OF THE TABLE IN RULE 114E S PECIFIES THAT THE REGISTRAR OR SUB-REGISTRAR APPOINTED UNDER SECT ION 6 OF THE REGISTRATION ACT, 1908 IS REQUIRED TO FILE AIR IN R ESPECT OF TRANSACTIONS OF PURCHASE OR SALE BY ANY PERSON OF I MMOVABLE PROPERTY VALUED AT RUPEES THIRTY LAKHS OR MORE. TH E DUE DATE FOR FILING THE AIR IS THE 31 ST AUGUST IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH THE TRANSACTION IS REGISTER ED OR RECORDED. IN THE EVENT OF FAILURE TO FURNISH THE AIR, PENALTY IS LEVIABLE UNDER SECTION 271FA OF THE ACT. 5. THE BRIEF FACTS OF THE CASE ARE THAT SUB REGISTR AR, JAGADHARI, DISTRICT YAMUNA NAGAR WAS REQUIRED TO FILE THE ANNU AL INFORMATION 4 RETURN (AIR) FOR THE FINANCIAL YEARS 2005-06 TO 200 8-09 BY 31.08.2006, 31.08.2007, 31.08.2008 AND 31.08.2009. THE DIT (CIB) CHANDIGARH NOTED THAT THE ASSESSEE HAD FURNIS HED THE SAID AIRS LATE I.E. IN RESPECT OF FINANCIAL YEAR 2005-06 ON 05.12.2010, FINANCIAL YEAR 2006-07 ON 03.12.2010, FINANCIAL YEA R 2007-08 ON 22.11.2010 AND 2008-09 ON 22.11.2010. SHOW CAUSE N OTICE WAS ISSUED TO THE ASSESSEE TO EXPLAIN AS TO WHY PENALTY UNDER SECTION 271FA OF THE ACT, SHOULD NOT BE IMPOSED FOR THE FAI LURE TO FURNISH THE AIRS IN TIME. IN REPLY THE ASSESSEE CLAIMED TH AT THE OFFICIALS OF THE SUB-REGISTRAR DEPARTMENT HAD NO KNOWLEDGE OF THE PROVISIONS OF SECTION 285BA OF THE ACT, WHICH HAD R EQUIRED THE SUB REGISTRAR/S TO SUBMIT AIRS IN FORM NO. 61A IN R ESPECT OF THE TRANSACTION REGISTERED/RECORDED FOR PURCHASE AND SA LE OF IMMOVABLE PROPERTY VALUED AT RS. 30 LACS OR MORE DURING ANY F INANCIAL YEAR BEGINNING ON OR AFTER 1.4.2004. THE PLEA OF THE AS SESSEE WAS THAT THOUGH IGNORANCE OF LAW WAS NO EXCUSE IN LEGAL PROC EEDINGS BUT SUCH MAJOR CHANGES WERE NOT BROUGHT TO THE KNOWLEDG E. FURTHER CLAIM OF THE ASSESSEE WAS THAT IT DID NOT HAVE ANY PAN NUMBER OR A TAN NUMBER TILL 01.10.2010 ON WHICH DATE THE APPLIC ATION WAS MADE WITH NSDL FOR THE ALLOTMENT OF TAN NUMBER. 6. THE DIT (CIB) AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE OBSERVED THAT THE SAME WAS NOT ACCEPTABLE IN VIEW OF THE FOLLOWING : I) ONE MAIN CONTENTION RAISED BY THE FILER IS THAT IT WAS NOT AWARE ABOUT THE I.T, PROVISIONS WITH REGARD TO FILING OF AIRS WITH NSDL. THIS CONTENTION OF THE FILER IS NOT ACCEPTABLE AS THE PR OVISIONS REGARDING FILING OF AIR WERE/ARE APPLICABLE SINCE FINANCIAL Y EAR 2004-05. MOREOVER, IGNORANCE OF LAW IS NOT AN EXCUSE FOR NOT COMPLYING WITH THE REQUIRED PROVISIONS II) RATHER, THE FILER BEING A GOVT. BODY SHOULD HAV E BEE-N MORE RESPONSIBLE AND SHOULD HAVE ENSURED THAT THE AIRS, AS REQUIRED BY A GOVT. ACT, SHOULD HAVE BEEN FILED WELL WITHIN TIME. HENCE THE FILER 5 HAS FAILED TO GIVE ANY REASONABLE CAUSE FOR THE DEL AY. THE INORDINATE DELAY WHICH IS TRUE IN THE CASE OF THE F ILER, STANDS UN- EXPLAINED AND UN-SUBSTANTIATED. III) FURTHER THE PERUSAL OF RECORD SHOWS THAT THE F ILER WAS MADE AWARE ABOUT THE FILING OF AIRS FROM TIME TO TIME BY ISSUA NCE OF NOTICES ON 29.11.2006, 13.09.2006, 22.06.2009 ETC, WHICH ALSO REMAINED UN- COMPLIED WITH. IV) HENCE THE FILER HAS ENTIRELY FAILED TO PROVIDE A VALID REASON U/S 273B OF THE ACT. THE FILER CANNOT BE ABSOLVED OF HI S STATUTORY DUTIES U/S 285BA(1) OF THE INCOME TAX ACT, 1961 FOR THE TI MELY FILING OF AIR FOR THE FINANCIAL YEARS UNDER CONSIDERATION. 7. THE DIT (CIB) THUS HELD THE ASSESSEE TO HAVE DEF AULTED IN FURNISHING THE AIRS IN TIME AND HENCE, HELD LIABLE TO LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT. IN RESPECT OF THE FINANCIAL YEAR 2005-06, IT WAS NOTED THAT THE ASSESSEE HAD FU RNISHED THE AIR IN THE OFFICE OF THE ADDL. COMMISSIONER OF INCOME T AX, YAMUNA NAGAR RANGE ON 11.10.2006. IT WAS FURTHER OBSERVED BY DIT (CIB) THAT THOUGH THE REQUIREMENT OF THE LAW IS TO FURNIS H INFORMATION WITH THE AUTHORIZED AGENCY, WHO IN TURN WOULD UPLOA D IT ON THE SYSTEM BUT THE DEFAULT WAS ONLY A TECHNICAL DEFAULT AS THE RETURN WAS FILED WITH THE PRESCRIBED AUTHORITY. IN VIEW T HEREOF, THE PENALTY UNDER SECTION 271FA OF THE ACT FOR ASSESSME NT YEAR 2005- 06 WAS RESTRICTED TO ONLY 41 DAYS I.E. THE PERIOD O F DEFAULT FROM 1.9.2006 TO 11.10.2006 AND IN RESPECT OF OTHER YEAR S I.E. FINANCIAL YEAR 2006-07 TO 1189 DAYS, 2007-08 TO 813 DAYS AND 2008-09 TO 448 DAYS AND PENALTY @ RS. 100/- PER DAY FOR THE SA ID DEFAULT WAS LEVIED. 8. THE CIT(APPEALS) HELD THAT AS THE ASSESSEE HAD FAILED TO COMPLY WITH THE PROVISIONS OF LAW, THE ARGUMENT OF HAVING FURNISHED INFORMATION AND IGNORANCE ABOUT THE PROCE DURE OF FILING THE SAME WAS HELD TO BE OF NO HELP T O THE ASSESSEE.THE 6 CIT(APPEALS) FURTHER HELD AS UNDER : THE INCOME TAX ACT REQUIRES THE APPELLANT TO FILE AIR AND THE APPELLANT BEING A GOVT. SERVANT IS NOT EXEMPT F ORM THE LEGAL REQUIREMENT OF FILING THE AIR. THE PLEA OF TH E APPELLANT THAT NO REVENUE LOSS HAS OCCURRED TO THE DEPARTMENT DUE TO NON FILING OF RETURN IN TIME IS OF NO HELP TO THE A PPELLANT SINCE FURNISHING OF AIR BY DUE DATE IS A MANDATORY REQUIREMENT OF LAW. THE APPELLANT I.E. THE SUB REGI STRAR, JAGADHRI, YAMUNA NAGAR HAS BEEN FILING AIRS LATE FO R THE LAST THREE YEARS I.E. RIGHT FROM FINANCIAL YEAR 200 6-07 TO 2008-09. THE APPELLANT DID NOT BOTHER TO RESPOND TO ANY ADVISORY LETTERS WHICH WERE ISSUED FROM THE OFFICE OF THE DIT(CIB) ON 29.11.2006, 13.09.2006, 22.09.2009. THE SE FACTS MAKE THE APPELLANT A HABITUAL DEFAULTER WITHOUT ANY CONCERN/RESPECT FOR THE LAW OF THE LAND. MENS-REA A ND MALAFIDE IN LATE FILING OF AIR FOR LEVY OF PENALTY ARE THUS; ESTABLISHED BEYOND DOUBT. IN THESE CIRCUMSTANCES S UITABLE PENALTY AS PER LAW IS LEVIABLE ON THE APPELLANT. THEREFORE THE PENALTY LEVIED UNDER SECTION 271FA @ 100/- PER DAY FOR DEFAULT FOR DELAY INFILLING AIR INFORMA TION BY THE DIT(CIB) IS CONFIRMED. 9. SHRI S.K.MUKHI, LD. COUNSEL FOR THE ASSESSEE POI NTED OUT THAT PENALTY UNDER SECTION 271FA OF THE ACT WAS LEVIED R ELATING TO ASSESSMENT YEARS 2006-07 TO 2009-10. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE WAS THAT THE ASSESSEE HAD FILED THE AIR INFORMATION MANUALLY AS IT HAD NO TAN NUMBER AND LA TER ON, THE SAID RETURNS OF INCOME WERE FILED THROUGH NSDL. BU T THE ASSESSING OFFICER HAD IGNORED THE MANUAL RETURNS FI LED BY THE ASSESSEE WHICH WERE IN COMPLIANCE TO VARIOUS NOTICE S ISSUED TO THE ASSESSEE AND HAD IMPOSED THE PENALTY UNDER SECTION 271FA OF THE ACT TILL THE DATE OF FILING THE RETURNS THROUGH NSD L. OUR ATTENTION WAS DRAWN BY THE LD. COUNSEL FOR THE ASSESSEE TO TH E VARIOUS COMMUNICATIONS ISSUED BY THE ASSESSING OFFICER OR THE DIT (CIB) FOR THE RESPECTIVE YEARS AND ALSO TO THE VARIOUS RE PLIES IN RESPONSE FILED BY THE ASSESSEE. 7 10. THE SECOND LIMB OF CONTENTION OF THE LD. AR FOR THE ASSESSEE WAS THAT AS NEW PROVISIONS WERE INTRODUCED UNDER TH E ACT WHICH WERE NOT IN THE KNOWLEDGE OF THE ASSESSEE, THE IMPU GNED PENALTY LEVIED IN THE CASES MAY BE DELETED AS THERE WAS NO LOSS TO THE REVENUE FOR NON FURNISHING THE SAID INFORMATION WIT HIN THE REQUISITE TIME. THE INTENTION OF THE LEGISLATURE W AS TO COLLECT THE ABOVESAID INFORMATION, WHICH THE ASSESSEE COMPLIED BY WAY OF FURNISHING THE RETURNS IN MANUAL FORM AND NO PENALT Y WAS LEVIABLE FOR SUCH TECHNICAL OR VENIAL BREACH OF THE PROVISIO NS OF THE ACT AS HELD BY THE HON'BLE SUPREME COURT IN HINDUSTAN STEE L LTD. VS STATE OF ORISSA 83 ITR 26 (S.C). 11. THE LD. AR FOR THE ASSESSEE FURTHER IN RESPECT OF EACH OF THE YEAR POINTED OUT THAT THE PENALTY LEVIABLE UNDER SE CTION 271FA OF THE ACT WAS ON THE HIGHER SIDE BECAUSE OF THE UNDER MENTIONED FACTS. IN RELATION TO FINANCIAL YEAR 2005-06, PENA LTY UNDER SECTION 271FA WAS LEVIED FOR DELAY OF 41 DAYS BUT THIS BEIN G THE FIRST YEAR, PRAYER WAS MADE FOR DELETING THE IMPUGNED PENALTY B Y WAY OF FACTS AND EVENTS/CASE LAWS FILED BY THE ASSESSEE. 12. IN RESPECT OF FINANCIAL YEAR 2006-07, PENALTY W AS LEVIED FOR DELAY OF 1189 DAYS ON THE BASIS THAT THE REQUISITE INFORMATION WAS FILED IN THE PRESCRIBED FORM ON 22.11.2010. THE AS SESSEE CLAIMS TO HAVE FURNISHED THE INFORMATION MANUALLY BEFORE THE OFFICE OF INCOME TAX OFFICER (CIB) ON 23.10.2008 IN RESPONSE TO THE NOTICE. DATED 10.09.2008 PLACED AT PAGE 7 OF THE PAPER BOOK . THE ASSESSEE CLAIMS THAT PART INFORMATION WAS FURNISHED ON 22.06 .2007 AS PER COPY OF LETTER ANNEXED AT PAGE 24 OF THE PAPER BOOK NO. 2 AND AS ON 23.10.2008 IN THE FORM OF CD FILED ON 23.10.2008 PLACED AT PAGE 7 OF THE PAPER BOOK. AS PER THE ACT, THE SAID INFORMATION WAS 8 DUE TO BE FILED ON 31.08.2007 AND THUS, AS PER THE ASSESSEE, THERE WAS NO DELAY AND NOT 1189 DAYS AS HELD BY THE DIT ( CIB). 13. IN RELATION TO THE FINANCIAL YEAR 2007-08, PENA LTY UNDER SECTION 271FA OF THE ACT HAS BEEN LEVIED FOR A DELA Y OF 813 DAYS SINCE THE REQUISITE DETAILS WERE FILED IN THE PRESC RIBED FORM THROUGH DULY APPOINTED AGENCY ON 22.11.2010. THE A SSESSEE, HOWEVER, CLAIMS THAT THE REQUISITE INFORMATION WAS FILED IN THE FORM OF CD BEFORE THE OFFICE OF THE DIT (CIB) ON 02 .07.2009 IN RESPONSE TO NOTICE DATED 22.06.2009 AS PER THE COPY OF THE NOTICE ENCLOSED AT PAGE 9 OF THE PAPER BOOK. AS PER THE A SSESSEE, THERE WAS DELAY OF ONLY 304 DAYS AND NOT 819 DAYS AS HELD BY THE DIT(CIB). 14. FURTHER, IN RESPECT OF FINANCIAL YEAR 2008-09, PENALTY HAD BEEN LEVIED FOR A DELAY OF 448 DAYS AS THE INFORMAT ION WAS FILED THROUGH THE APPOINTED AGENCY ON 22.11.2010. THE AS SESSEE CLAIMS TO HAVE FILED THE INFORMATION IN CD BEFORE THE OFFI CE OF DIT(CIB) ON 02.07.2009 IN RESPONSE TO NOTICE DATED 22.06.200 9 PLACED AT PAGE 9 OF THE PAPER BOOK. THE INFORMATION HAVING B EEN FILED BEFORE 31.08.2009, THE CLAIM OF THE ASSESSEE WAS TH AT THERE WAS NO DELAY IN FILLING THE INFORMATION. 15. IN RESPECT OF THE DELAY IN EACH OF THE YEAR, TH E LD. AR FOR THE ASSESSEE POINTED OUT THAT THERE WERE FREQUENT TRAN SFERS IN THE OFFICE OF THE SUB REGISTRAR AND THE NEW OFFICIALS W ERE NOT BEING AWARE OF THE PENDING JOBS AND ALSO THE ASSESSEE HAV ING NO TAN NUMBER, COULD NOT FILE THE NECESSARY INFORMATION IN TIME, BUT FILED THE SAME IN RESPONSE TO VARIOUS NOTICES ISSUED BY T HE CONCERNED AUTHORITIES. THE LD. AR FURTHER PLACED RELIANCE ON THE RATIO LAID 9 DOWN IN MOHAMMAD YOUSUF VS ITO 254 ITR 314 (ALL) FO R THE PROPOSITION THAT EACH ASSESSMENT WAS AN INDEPENDENT UNIT OF ASSESSMENT AND THE PROVISIONS OF THE ACT APPLY SEPA RATELY. FURTHER RELIANCE WAS PLACED ON C.T.RAMANATHAN & CO. VS ITO 34 TTJ 125 (MAD) FOR THE PROPOSITION THAT WHERE THE ASSESSEE H AD BEEN TRYING TO COMPLY WITH THE REQUIREMENTS OF LAW AND STILL FA ULTS OCCUR, SUCH DEFAULTS WERE TO BE CONSIDERED TO BE VENIAL. FURTH ER CONTENTION OF THE ASSESSEE WAS THAT THE ASSESSING OFFICER IN THE FINANCIAL YEAR 2005-06 HAD ACCEPTED THE DETAILS FILED MANUALLY BY TREATING THE DELAY OF ONLY 41 DAYS BUT IN SUBSEQUENT YEARS, SIMI LAR DETAILS FILED BY THE ASSESSEE HAVE BEEN IGNORED. 16. THE LD. AR FOR THE ASSESSEE PLACED RELIANCE ON THE PRINCIPLES OF JUDICIAL CONSISTENCY AS HELD IN THE CASE OF RADH ASOAMI SATSANG VS CIT [193 ITR 321 (S.C)]. FURTHER RELIANCE WAS P LACED ON M/S BERGER PAINTS (INDIA) LTD. VS CIT [266 ITR 99 (S.C) ] WHEREIN THE HON'BLE SUPREME COURT HELD THAT IN CASE THE DEPARTM ENT HAD NOT CHALLENGED ONE ISSUE IN SOME ASSESSEES CASE, THEN I T WAS PRECLUDED FROM TAKING ACTION IN THE CASE OF OTHER ASSESSEES U NDER SIMILAR FACTS AND CIRCUMSTANCES. 17. THE LD. DR FOR THE REVENUE POINTED OUT THAT THE PERUSAL OF THE INFORMATION FURNISHED BY THE ASSESSEE REFLECTS THAT MOST OF THE INFORMATION HAS BEEN FILED BEFORE THE ASSESSING OFF ICER (CIB) AND THE SAID INFORMATION IS CALLED FOR UNDER SECTION 13 3(6) OF THE ACT IN RESPECT OF SALE AND PURCHASE OF IMMOVABLE PROPER TY OF RS. 5 LACS TO RS. 30 LACS FOR THE FINANCIAL YEARS UNDER CONSID ERATION. OUR ATTENTION WAS DRAWN TO THE COMPLIANCE MADE BY THE A SSESSEE FOR THE FINANCIAL YEAR 2004-05, 2005-06 AND 2006-07 AS PER THE LETTER PLACED AT PAGE 7 OF THE PAPER BOOK. THE LD. DR FOR THE REVENUE 10 FURTHER POINTED OUT THAT THOUGH THE COPY OF THE SAI D LETTER HAS BEEN ANNEXED, BUT THE ASSESSEE HAS FAILED TO FURNISH ON RECORD ANY RECORD OF HAVING FURNISHED THE SAID INFORMATION TO THE ASSESSING OFFICER (CIB). IT WAS POINTED OUT BY THE LD. DR FO R THE REVENUE THAT THE FIRST ADVISORY LETTER WAS ISSUED BY THE DE PARTMENT TO THE ASSESSEE ON 29.11.2006 AND THE CIT(APPEALS) AT PAGE 5 HAS GIVEN A FINDING THAT THE FIRST ADVISORY WAS ISSUED ON 29.11 .2006. THE ASSESSEE HAVING FAILED TO COMPLY WITH THE PROVISION S OF THE ACT IS ELIGIBLE FOR LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT. IT WAS FURTHER POINTED OUT BY THE LD. DR FOR THE REVENUE T HAT UNDER SECTION 285BA OF THE ACT READ WITH RULE 114E OF THE IT RULE S, THE ASSESSEE WAS TO FURNISH THE REQUISITE INFORMATION I N FORM NO. 61A. AS PER THE LD. DR FOR THE REVENUE, LAW HAD SPECIFIE D CERTAIN ACTS TO BE DONE IN SPECIFIED MANNER. OPPOSING THE CONTENTI ON OF THE LD. AR FOR THE ASSESSEE THAT TAN NUMBER WAS NOT AVAILAB LE AND HENCE, THE DELAY, IT WAS POINTED OUT THAT SUCH PLEA CANNOT BE ACCEPTED. RELIANCE WAS PLACED ON BIHARI LAL JAISWAL & ORS. VS CIT [217 ITR 746 (S.C)] AND MADDI VENKATARAMAN & CO. PVT.LTD . [229 ITR 534 (S.C)] FOR THE PROPOSITION THAT ONE ARM OF LAW CANNOT BE USED TO SUBVERT THE PROVISIONS OF LAW. THE LD. DR STRE SSED THAT THE APPLICATION FOR ISSUE OF TAN HAD TO BE MADE BY THE ASSESSEE BUT THAT IN-TURN DOES NOT MEAN THAT NO COMPLIANCE WOULD BE MADE TO THE OTHER PROVISIONS OF THE ACT. THE LD. DR FURTHE R STRESSED THAT THOUGH MANUAL FILING BY THE ASSESSEE IN THE FIRST Y EAR WAS ACCEPTED BY THE ASSESSING OFFICER BUT THE SAME WAS INCORRECT UNDER THE PROVISIONS OF THE ACT. 18. THE LD. DR FOR THE REVENUE POINTED OUT THAT UND ER RULE 114E(2) POINT-6 OF THE IT RULES, THE INFORMATION HA D TO BE FILED BY 11 THE ASSESSEE IN RESPECT OF THE TRANSACTIONS OVER RS . 30 LACS AND ALL THE CORRESPONDENCE REFERRED TO BY THE ASSESSEE WHIC H WAS SUBMITTED BEFORE THE ASSESSING OFFICER (CIB) WAS IN RESPECT OF TRANSACTION BETWEEN RS. 5 LACS TO RS.30 LACS. THE SAID INFORMATION WAS CALLED FOR UNDER THE PROVISIONS OF SECTION 133( 6) OF THE ACT BY THE APPROPRIATE AUTHORITIES BUT THE SAME COULD NOT BE SAID TO BE IN COMPLIANCE TO THE PROVISIONS OF SECTION 285BA OF TH E ACT. IT WAS FURTHER POINTED OUT BY THE LD. DR FOR THE REVENUE T HAT THE RATIO LAID DOWN IN THE HINDUSTAN STEEL LTD. VS STATE OF ORISSA (SUPRA) HAS BEEN DISTINGUISHED IN PATAN NAGRIK SAHAKARI BANK LT D. VS DIT (CIB) 338 ITR 167 (GUJ). THE LD. DR FOR THE REVENU E FURTHER PLACED RELIANCE ON THE RATIO LAID DOWN IN CIT V. KA NUBHAI MULJIBHAI PATEL [ (2008) 306 ITR 179 (GUJ.] THAT EVEN WHERE THE RETURNS WERE ACCEPTED MANUALLY BUT THAT WAS NOT COR RECT POSITION IN VIEW OF THE PROVISIONS OF THE ACT. THE LD. DR FOR THE REVENUE FURTHER POINTED OUT THAT THE HON'BLE GUJRAT HIGH CO URT IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CIB) (SUPRA) HAD UPHELD LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT. 19. THE LD. AR FOR THE ASSESSEE IN REJOINDER POINTE D OUT THAT THE RATIO LAID DOWN IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CIB), 338 ITR 167 (GUJ) WAS ON COMPLETELY DIFFERENT ISSUE WHERE THE ASSESSEE HAD FAILED TO FURNISH ANY INFORMATION BEFO RE THE AUTHORITIES. IT WAS AGAIN STRESSED BY THE LD. AR FO R THE ASSESSEE THAT INFORMATION WAS FILED MANUALLY IN RESPONSE TO THE VARIOUS NOTICES. OUR ATTENTION WAS DRAWN TO THE NOTICE ISS UED TO THE ASSESSEE FOR FINANCIAL YEAR 2006-07 AT PAGE 1 DATED 10.08.2007. THE LD. AR POINTED OUT THAT THE TOTALITY OF THE FAC TS AND CIRCUMSTANCES REFLECT THAT THERE WAS REASONABLE CAU SE FOR NOT 12 FURNISHING THE INFORMATION IN TIME AND HENCE, THERE WAS NO MERIT IN THE LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT. 20. IN ITA NOS. 79 TO 82 I.E. IN RESPECT OF THE SUB REGISTRAR, BILASPUR DISTT. YAMUNA NAGAR, THE LD. AR SUBMITTED THAT THE EARLIER SUBMISSIONS MADE IN THE CASE OF SUB REGISTRAR, JAGA DHARI, DISTT. YAMUNA NAGAR MAY BE ADOPTED FOR ADJUDICATING THE IS SUE.OUR ATTENTION WAS DRAWN TO THE CHART FURNISHED AT PAGE 2 OF PAPER BOOK NO. 2 UNDER WHICH IT WAS CLAIMED THAT THE MANUALLY RETURNS WERE FILED BEFORE FILING THE RETURNS THROUGH THE APPOINT ED AGENCY. THE LD. DR FOR THE REVENUE IN RESPONSE POINTED OUT THAT THE FIRST ADVISORY LETTER WAS ISSUED ON 29.11.2006 AND THE CI T(APPEALS) HAS ALSO GIVEN A FINDING IN THIS REGARD AT PAGE 5 OF TH E APPELLATE ORDER, BUT THE ASSESSEE FAILED TO COMPLY WITH THE SAID ADV ISORY LETTER AND HAD FURTHER DELAYED IN FURNISHING THE REQUISITE INF ORMATION. RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY AMRIT SAR BENCH OF THE TRIBUNAL IN THE CASE OF SUB REGISTRAR VS.DIT (C IB) CHANDIGARH ITA NOS. 261 TO 265(ASR)/2013 A.Y. 2005-06 TO 2009- 10 AND SUB REGISTRAR VS DIT (CIB), CHANDIGARH ITA NOS. 266 TO 270/ASR)/2013 A.Y. 2005-06 TO 2009-10, ORDER DATED 27.06.2013 WHICH IN TURN HAD FOLLOWED THE RATIO LAID DOWN IN I TA NOS. 137 TO 140/ASR/2013 ORDER DATED 30.05.2013 BY THE LD. DR F OR THE REVENUE. 21. THE LD. AR FOR THE ASSESSEE IN ITA NOS. 89 TO 9 2/CHD/2012 POINTED OUT THAT UNDER THE PROVISIONS OF SECTION 28 5BA(I) OF THE ACT, IT IS PRESCRIBED THAT THE INFORMATION MAY BE F ILED BEFORE PRESCRIBED AUTHORITY OR NSDL AND THE ASSESSEE HAVIN G FURNISHED INFORMATION BEFORE THE PRESCRIBED AUTHORITY COULD N OT BE HELD TO BE IN DEFAULT AND THERE WAS NO MERIT IN LEVYING PENALT Y UNDER SECTION 13 271FA OF THE ACT. IT WAS FURTHER POINTED OUT BY TH E LD. AR FOR THE ASSESSEE THAT IN FINANCIAL YEAR 2008-09 THERE WAS A N ERROR IN MENTIONING THE DATE I.E. THE INFORMATION WAS FILED ON 16.09.2010 AND NOT 17.11.2010 AS HELD BY THE DIT (CIB). THE L D. AR FOR THE ASSESSEE SUBMITTED THAT EARLIER SUBMISSIONS MADE BY HIM SHOULD BE CONSIDERED IN THE PRESENT SET OF FACTS ALSO. 22. THE LD. DR FOR THE REVENUE, IN RESPONSE POINTED OUT THAT UNDER THE PROVISIONS OF SECTION 285BA(1) OF THE ACT , THE TERM USED IS MAY I.E. NOTICE MAY BE SENT BY THE PRESCRIBED AUTHORITY AND THERE WAS NO COMPULSION TO SEND NOTICE AND ONUS WAS UPON THE ASSESSEE TO FURNISH THE REQUISITE INFORMATION WITHI N THE STIPULATED PERIOD. IT WAS FURTHER POINTED OUT BY THE LD. DR F OR THE REVENUE THAT NO PLEADINGS WERE MADE BEFORE THE CIT(APPEALS) THAT THE AIR WAS FILED ON 16.09.2010 AND FURTHER THE LETTER FILE D BY THE ASSESSEE IS NOT ACKNOWLEDGED BY THE DEPARTMENT AND THE ASSES SEE HAS FAILED TO FURNISH ANY EVIDENCE OF HAVING FILED THE SAID IN FORMATION. 23. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. SECTION 285BA OF THE ACT PRESCRIBED AN OBLIGATION T O FURNISH ANNUAL INFORMATION REPORT BY THE PRESCRIBED PERSON FOR THE SPECIFIED TRANSACTION WITHIN STIPULATED TIME. THE SUB REGISTRAR IN VIEW OF THE PROVISIONS OF SECTION 285BA OF THE ACT IS REQUIRED TO FILE ANNUAL INFORMATION REPORT IN RESPECT OF THE TR ANSACTION OF PURCHASE AND SALE BY ANY PERSON OF IMMOVABLE PROPE RTY VALUED AT RS.30 LACS OR MORE. THE DUE DATE FOR FILING THE SA ID AIR INFORMATION IN FORM NO.61A IS 31 ST AUGUST IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH THE TRANSACTION WAS REG ISTERED OR RECORDED. THE ONUS IS UPON THE ASSESSEE TO FURNISH THE SPECIFIED INFORMATION UNDER SECTION 285BA OF THE ACT. 14 24. COMING TO THE PROVISIONS OF SECTION 285BA OF TH E ACT, THE SUB-SECTION (1) PROVIDES THE LIST OF PERSONS WHO AR E REQUIRED TO FURNISH THE ANNUAL INFORMATION RETURN IN RESPECT OF FINANCIAL TRANSACTIONS WHICH ARE REGISTERED OR RECORDED DURIN G THE FINANCIAL YEAR BEGINNING ON OR AFTER 1 ST DAY OF APRIL, 2004. SUCH INFORMATION IS TO BE FURNISHED TO THE PRESCRIBED IN COME TAX AUTHORITY I.E. THE DIRECTOR OF INCOME TAX (CENTRAL INFORMATION BRANCH) OR THE AUTHORITY/AGENCY PRESCRIBED UNDER TH E ACT I.E. NSDL. THE ANNUAL INFORMATION RETURN REFERRED TO IN SUB-SECTION (1) TO SECTION 285BA OF THE ACT, AS PER SUB-SECTION (2) IS TO BE FURNISHED ON OR BEFORE 31 ST AUGUST IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH THE TRANSACTION WAS REGISTE RED OR RECORDED, IN FORM NO.61A, AS PRESCRIBED UNDER RULE 114E OF TH E INCOME TAX RULES. SUB-SECTION (3) DEFINES SPECIFIED FINANCIAL TRANSACTION, WHICH MAY BE PRESCRIBED UNDER THE ACT. THE BOARD H AS GIVEN AUTHORITY TO PRESCRIBE DIFFERENT VALUES FOR DIFFERE NT TRANSACTIONS IN RESPECT OF DIFFERENT PERSONS, HAVING REGARD TO THE NATURE OF SAID TRANSACTION. UNDER SUB-SECTION (4) WHERE THE PRESC RIBED INCOME TAX AUTHORITY CONSIDERS THE ANNUAL INFORMATION RETU RN FURNISHED UNDER SUB-SECTION (1) TO BE DEFECTIVE, THEN SUCH DE FECTS ARE TO BE INTIMATED TO THE PRESCRIBED PERSON AND AN OPPORTUNI TY IS TO BE ALLOWED FOR RECTIFYING THE SAME WITHIN THE SPECIFIE D/ EXTENDED PERIOD. IN CASE SAID DEFECTS ARE NOT REMOVED WITHI N THE PRESCRIBED OR EXTENDED PERIOD THEN SUCH RETURNS WOULD BE TREAT ED AS AN INVALID RETURN AND THE PROVISIONS OF THE ACT WOULD APPLY AS IF THE PERSON HAD FAILED TO FURNISH THE ANNUAL INFORMATION RETURN . UNDER SUB- SECTION (5) WHERE THE PRESCRIBED PERSON HAS NOT FUR NISHED ANNUAL INFORMATION RETURN WITHIN THE PRESCRIBED TIME, THE PRESCRIBED INCOME TAX AUTHORITY MAY SERVE UPON SUCH PERSON NOT ICE REQUIRING 15 HIM TO FURNISH SUCH RETURN WITHIN A PERIOD NOT EXCE EDING SIXTY DAYS. 25. UNDER THE PROVISIONS OF SECTION 271FA OF THE AC T, PENALTY IS IMPOSABLE IN THE EVENT OF THE PERSON RESPONSIBLE HA VING FAILED TO FURNISH THE AIR INFORMATION UNDER SECTION 285BA OF THE ACT. SECTION 271 FA OF THE ACT READS AS UNDER: [ PENALTY FOR FAILURE TO FURNISH ANNUAL INFORMATION RETURN. 271FA. IF A PERSON WHO IS REQUIRED TO FURNISH AN ANNUAL INFORMATION RETURN, AS REQUIRED UNDER SUB-SECTION ( 1) OF SECTION 285BA , FAILS TO FURNISH SUCH RETURN WITHIN THE TIME PRESCRIBED UNDER THAT SUB-SECTION, THE INCOME-TAX A UTHORITY PRESCRIBED UNDER THE SAID SUB-SECTION MAY DIRECT TH AT SUCH PERSON SHALL PAY, BY WAY OF PENALTY, A SUM OF ONE H UNDRED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTI NUES.] 26. READING THE PROVISIONS OF SECTION 285BA AND THE RELEVANT PROVISIONS OF SECTION 271FA OF THE ACT, IT TRANSPIR ES THAT WHERE THE PRESCRIBED PERSON IS REQUIRED TO FURNISH THE AIR AN D FAILS TO FURNISH THE SAME WITHIN THE PRESCRIBED TIME, THEN S UCH PERSON COULD BE HELD TO BE LIABLE TO LEVY OF PENALTY EQUIVALENT TO RS.100/- FOR EVERY DAY OF DEFAULT. THE ABOVE SAID PROVISIONS WE RE INSERTED BY THE FINANCE (NO.2) ACT 2004 W.E.F. 1.4.2005. UNDER THE PROVISIONS OF SECTION 273B OF THE ACT, THE PENALTY LEVIABLE UN DER VARIOUS SECTIONS IS NOT TO BE IMPOSED, WHERE THE PERSON PRO VES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE/DEFAULT. THE LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT IS ALSO COVE RED WITHIN THE PROVISIONS OF SECTION 273B OF THE ACT. IT THUS IMP LIES THAT IN EACH CASE OF DEFAULT UNDER SECTION 271FA OF THE ACT, THE LEVY OF PENALTY IS NOT COMPULSORY AND THE SAME IS NOT IMPOSABLE IF THE PERSON SATISFIES THE CONDITIONS PRESCRIBED UNDER SECTION 2 73B OF THE ACT. 16 27. WE FIND THAT THE ISSUE OF LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT AROSE BEFORE THE HON'BLE GUJARAT HIGH CO URT IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CIB) (SUPRA), WHE REIN IT HAS BEEN OBSERVED AS UNDER: SECTION 285BA OF THE ACT IMPOSES AN OBLIGATION UPO N ANY PERSON, BEING AN ASSESSEE, WHO IS RESPONSIBL E FOR REGISTERING OR MAINTAINING BOOKS OF ACCOUNT OR OTHE R DOCUMENTS CONTAINING A RECORD OF ANY SPECIFIED FINANCIAL TRANSACTION, UNDER ANY LAW FOR THE TIME B EING IN FORCE, TO FURNISH AN ANNUAL INFORMATION RETURN, IN RESPECT OF SUCH SPECIFIED FINANCIAL TRANSACTION WHI CH IS REGISTERED OR RECORDED BY HIM DURING ANY FINANCIAL YEAR BEGINNING ON OR AFTER THE APRIL 1, 2004, AND INFORMATION RELATING TO WHICH IS RELEVANT AND REQUI RED FOR THE PURPOSES OF THE ACT TO THE PRESCRIBED INCOM E- TAX AUTHORITY OR SUCH OTHER AUTHORITY OR AGENCY AS MAY BE PRESCRIBED. SUCH ANNUAL INFORMATION REPORT IS REQUIRED TO BE FURNISHED WITHIN THE PRESCRIBED TIME AFTER THE END OF THE FINANCIAL YEAR. SUB-SECTION (5 ) OF SECTION 285BA OF THE ACT LAYS DOWN THAT WHERE A PER SON WHO IS REQUIRED TO FURNISH AN ANNUAL INFORMATION RETURN UNDER SUB-SECTION (1) HAS NOT FURNISHED THE SAME WITHIN THE PRESCRIBED TIME, THE PRESCRIBED INCOME-T AX AUTHORITY MAY SERVE UPON SUCH PERSON A NOTICE REQUIRING HIM TO FURNISH SUCH RETURN WITHIN A PERIO D NOT EXCEEDING SIXTY DAYS FROM THE DATE OF SERVICE O F SUCH NOTICE AND HE SHALL FURNISH THE ANNUAL INFORMA TION RETURN WITHIN THE TIME SPECIFIED IN THE NOTICE. 28. THE HON'BLE COURT FURTHER HELD THAT WHERE THE P ETITIONER HAD MADE OUT A REASONABLE CAUSE FOR NOT FILING THE PRES CRIBED AIR RETURN WITHIN THE PRESCRIBED PERIOD OF LIMITATION, IT WOULD BE REASONABLE TO BELIEVE THAT THE PETITIONER WAS NOT A WARE OF THE PROVISIONS OF SECTION 285BA OF THE ACT. THE HON'BL E COURT FURTHER OBSERVED THAT WHERE THE PERSON HAD NOT FURNISHED TH E AIR RETURN UNDER SECTION 285BA(1) OF THE ACT, SUB-SECTION (5) THEREOF LAYS DOWN THAT PRESCRIBED INCOME TAX AUTHORITY MAY SERVE UPON SUCH PERSON A NOTICE REQUIRING HIM TO FURNISH SAID RETUR N WITHIN THE SPECIFIED PERIOD NOT EXCEEDING 60 DAYS FROM THE DAT E OF SERVICE OF SUCH NOTICE. THE HON'BLE COURT CONCLUDED BY HOLDIN G THAT UPON SUCH NOTICE BEING SERVED, THE PETITIONER CAN NO LON GER PLEAD THAT IT 17 WAS UNAWARE OF THE STATUTORY PROVISIONS OR ITS OBLI GATIONS UNDER THE SAME . THE HON'BLE COURT THUS HELD THAT THE ASSESSEE IN SUCH CIRCUMSTANCES COULD NOT BE SAID TO HAVE ANY REASONA BLE CAUSE FOR NOT FILING THE ANNUAL INFORMATION RETURN WITHIN THE PERIOD OF 60 DAYS OF SERVICE OF THE SAID NOTICE. THE HON'BLE CO URT OBSERVED THAT HOWEVER, MERELY BECAUSE THE PETITIONER HAS NOT IMME DIATELY TAKEN STEPS AFTER THE ISSUANCE OF THE FIRST NOTICE ON DECEMBER 17, 2008, IT CANNOT BE SAID THAT THE REASONABLE CAUSE M ADE OUT BY THE PETITIONER IN RESPECT OF THE PERIOD PRIOR THERETO S HOULD NOT BE TAKEN INTO CONSIDERATION WHILE CONSIDERING THE QUA NTUM OF PENALTY TO BE IMPOSED UNDER SECTION 271FA OF THE ACT. HOWE VER, WITH EFFECT FROM THE DATE OF SERVICE OF THE NOTICE DATED DECEMBER 17, 2008, ISSUED UNDER SECTION 285BA(5) OF THE ACT, ANY DEFAULT ON THE PART OF THE PETITIONER WOULD BE VIEWED AS A CONSCIO US DISREGARD OF ITS STATUTORY OBLIGATION AND AS SUCH, IN RESPECT OF THE PERIOD SUBSEQUENT THERETO, THE PETITIONER WOULD NOT BE ENT ITLED TO THE BENEFIT OF THE PROVISIONS OF SECTION 273B OF THE AC T. THIS VIEW FINDS SUPPORT IN THE DECISION OF THIS COURT IN THE CASE O F CIT V. KANUBHAI MULJIBHAI PATEL [2008] 306 ITR 179 (GUJ) ON WHICH R ELIANCE HAS BEEN PLACED ON BEHALF OF THE PETITIONER . 29. THE HON'BLE SUPREME COURT IN MOTILAL PADAMPAT S UGAR MILLS CO.LTD. VS. STATE OF UTTAR PRADESH & OTHERS [118 I TR 326(S.C.)] HAD HELD THAT THERE IS NO PRESUMPTION THAT EVERY PERSON KNOWS THE LAW. IT IS OFTEN SAID THAT EVERY ONE IS PRESUMED T O KNOW THE LAW, BUT THAT IS NOT A CORRECT STATEMENT: THERE IS NO SU CH MAXIM KNOWN TO THE LAW. WITHOUT GOING INTO THE FACTS OF THE CASE, WE ARE OF THE OPINION THAT SAME IS APPLICABLE ONLY TILL THE TIME THE SPECIFIED PERSON WAS MADE AWARE THROUGH THE NOTICE OF ITS OBL IGATION UNDER 18 SECTION 285BA OF THE ACT OR HAD BECOME AWARE ON ITS OWN NOTION. HOWEVER, THE SITUATION WOULD CHANGE AFTER HAVING RE CEIVED THE NOTICE FOR FILING THE AIRS. THE SPECIFIED PERSON WA S WELL AWARE OF THE LEGAL POSITION AND ITS OBLIGATIONS. 30. IN THE FACTS OF THE PRESENT CASE AND AS REFERRE D TO BY US IN PARAS HEREINABOVE, THE CASE OF THE SPECIFIED PERSON S BEFORE US IS THAT THE PROVISIONS OF SECTION 285BA OF THE ACT BEI NG NEWLY INTRODUCED WERE NOT IN THEIR KNOWLEDGE AND BECAUSE OF THE SAME THERE WAS DEFAULT IN COMPLIANCE TO THE SAID PROVISI ONS. WE FIND MERIT IN THE SAID PLEA THAT IN VIEW OF THE NEWLY IN TRODUCED PROVISIONS OF SECTION 285BA OF THE ACT AND BECAUSE OF LACK OF KNOWLEDGE OF THE SAID PROVISIONS, THERE WAS DEFAULT IN FURNISHING THE PRESCRIBED INFORMATION BEFORE THE INCOME TAX AU THORITIES. THUS, WE ARE OF THE VIEW THAT NO PENALTY UNDER SECT ION 271FA OF THE ACT IS LEVIABLE FOR THE PERIOD UPTO THE DATE OF FIRST NOTICE BY WHICH THE SPECIFIED PERSONS BECAME AWARE OF ITS OBL IGATIONS OR THROUGH ANY OTHER MODE, AS THERE WAS REASONABLE CAU SE FOR NOT FILING THE SAID INFORMATION IN TIME. HOWEVER, THE S AID PLEA OF NON- AWARENESS OF THE PROVISIONS OF THE ACT CANNOT BE PR ESSED INTO SERVICE FOR THE PERIOD AFTER THE SAID DATE. FURTHE R, THE PERSON CANNOT TAKE SHELTER UNDER THE PLEA THAT IN THE ABSE NCE OF ANY NOTICE ISSUED, IT WAS NOT AWARE OF ITS OBLIGATIONS, AS THE ONUS IS UPON THE PERSONS TO FURNISH THE INFORMATION. IN SUCH CASES, THE DATE OF FIRST NOTICE OR DATE OF FURNISHING THE FIRST AIR UNDER SE CTION 285BA OF THE ACT, WOULD BE THE DATE OF NOTICE. 31. THE SECOND PLEA RAISED BY THE LEARNED A.R. FOR THE ASSESSEE WAS THAT BECAUSE OF TECHNICAL AND VENIAL BREACH, NO PENALTY WAS IMPOSABLE, FOR WHICH RELIANCE WAS PLACED ON HINDUST AN STEEL 19 LIMITED VS STATE OF ORISSA 83 ITR 26 (S.C) AND C.T. RAMANATHAN AND CO. VS ITO, 34 TTJ 125 (MAD). 32. ON CONSIDERATION OF THEJUDGEMENTS, WE ARE OF TH E OPINION THAT FAILURE TO FILE REQUIRED PARTICULARS IN RESPECT OF TRANSACTIONS OF SALE VALUE OF RS. 30 LACS OR ABOVE UNDER SECTION 285BA O F THE ACT CANNOT BE TERMED MERELY BREACH OF TECHNICAL NATURE BECAUSE ON THE BASIS OF SUCH INFORMATION, THE REVENUE WOULD TAKE A CTION AGAINST SPECIFIED PERSONS I.E. PERSONS PURCHASING OR SELLIN G PROPERTIES IN VALUE EXCEEDING RS. 30 LACS AND IN THE ABSENCE OF S UCH INFORMATION, WHICH IS REQUIRED TO BE FILED BY SUB-R EGISTRAR, THE DEPARTMENT CAN LOOSE HUGE REVENUE. THEREFORE, SUCH DEFAULT IS LEADING TO ENORMOUS CONSEQUENCES, WHICH CANNOT BE T ERMED AS TECHNICAL. 33. SECONDLY, IN ANY CASE, GUJRAT HIGH COURT IN PAT AN NAGRIK SAHAKARI BANK LTD. (SUPRA)HAS CONSIDERED THE DECISI ON OF HINDUSTAN STEEL LTD. VS STATE OF ORISSA (SUPRA) WHI LE DEALING WITH THE ISSUE OF LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT, WHICH IS IDENTICAL AND STILL HELD THE PENALTY TO BE LEVIA BLE. WE FIND NO MERIT IN THE PLEA OF THE ASSESSEE IN THIS REGARD. 34. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN H.M. T. LTD. TRACTORS DIVISION VS CIT [ 274 ITR 544 (P&H) ] HAVE LAID DOWN THE PRINCIPLE THAT WHERE THE TAX AT SOURCE HAD BEEN PAID IN TIME AND THE NECESSARY RETURN IN RESPECT THEREOF WAS FILED I N TIME WITH THE INCOME TAX DEPARTMENT, ON MERE LATE ISSUE OF TAX DE DUCTION CERTIFICATE, THERE WAS NO LOSS TO THE REVENUE AND T HE DELAY IN FURNISHING THE TAX DEDUCTION CERTIFICATE WAS MERELY TECHNICAL OR VENIAL IN NATURE AND PENALTY COULD NOT BE IMPOSED. THE SAID 20 DECISION CANNOT BE APPLIED TO THE PRESENT ISSUE IN VIEW OF THE REASONS GIVEN ABOVE. 35. HOWEVER, IN THE FACTS OF THE PRESENT CASE, WHER E THE ASSESSEE FAILED TO FURNISH THE AIR WITHIN TIME, COULD NOT BE SAID TO BE MERE TECHNICAL OR VENIAL BREACH. 36. THE NEXT PLEA RAISED BY THE ASSESSEE WAS THAT THERE WAS NO TAX INVOLVEMENT AND IT WOULD NOT MAKE ANY DIFFERENC E IF THE RETURN WAS NOT SUBMITTED IN TIME DOES NOT STAND AS SIMILAR PLEA WAS RAISED BEFORE THE HON'BLE GUJARAT HIGH COURT IN PATAN NAGR IK SAHAKARI BANK LTD. VS DIT (CIB) (SUPRA) AND THE HON'BLE COUR T OBSERVED AS UNDER: 'AS REGARDS THE CONTENTION THAT IN ANY CASE, THE REVENUE HAD NO USE FOR THE ANNUAL INFORMATION RETURNS OF THE FINANCIAL YEAR 2006-07, WHEN THERE I S A STATUTORY OBLIGATION ON THE ASSESSEE TO FURNISH ANNUAL INFORMATION RETURN, IT IS BOUND BY IT. HOW AND IN WHAT MANNER THE INCOME-TAX AUTHORITIES MAKE USE OF THE SAID INFORMATION IS NOT THE LOOK OU T OF THE PETITIONER. THE PETITIONER IS BOUND TO COMPLY WITH THE STATUTORY REQUIREMENTS AS PRESCRIBED, FAILING WHICH IT HAS TO FACE THE CONSEQUENCES OF SUCH FAILURE. BESIDES, AS RIGHTLY CONTENDED ON BEHALF OF THE REVENUE, ON ACCOUNT OF NOT PROVIDING INFORMATION IN TIME, THE REVENUE WAS NOT IN A POSITION TO TAKE REMEDIAL ACTION. 37. WE FURTHER FIND THAT THE AMRITSAR BENCH OF TRIB UNAL IN SUB REGISTRAR VS DIT (CIB) IN ITA NOS. 137 TO 140/ASR/2 013 VIDE ORDER 30.05.2013 HAD APPLIED THE RATIO LAID DOWN BY THE HON'BLE GUJRAT HIGH COURT IN PATAN NAGRIK SAHAKARI BANK LTD . VS DIT (CIB) (SUPRA)AND HAD HELD THAT THE PERIOD OF PENAL TY IS TO BE WORKED OUT FROM THE FIRST ADVISORY LETTER ISSUED TO THE ASSESSEE. THE PLEA OF IGNORANCE OF LAW MADE BY THE ASSESSEE T HEREIN WAS REJECTED IN VIEW OF RATIO LAID DOWN BY THE HON'BLE GUJRAT HIGH COURT IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CI B) (SUPRA). 21 BUT THE PLEA OF REASONABLE CAUSE FROM THE DATE OF I SSUE OF FIRST ADVISORY LETTER WAS ACCEPTED BY THE TRIBUNAL. 38. THE NEXT ISSUE RAISED BY THE LD. AR FOR THE ASS ESSEE BEFORE US IS IN RELATION TO THE FURNISHING OF INFORMATION IN RESPECT OF THE TRANSACTIONS RELATING TO THE SALE AND PURCHASE OF T HE PROPERTY VALUED AT RS. 30 LACS OR ABOVE. THE CASE OF THE AS SESSEE IS THAT IN THE ABSENCE OF THE AWARENESS OF THE PROVISIONS OF T HE ACT AND ALSO AS NO TAN NUMBER WAS AVAILABLE WITH THE ASSESSEE, I NFORMATION WAS FURNISHED MANUALLY WITH THE CONCERNED OFFICERS OF THE DEPARTMENT AND WHEN THE NOTICE WAS ISSUED BY THE SA ID DEPARTMENT FOR FURNISHING THE REQUISITE INFORMATION. HOWEVER, THE INFORMATION WAS UPLOADED ON THE NSDL ON A LATER DATE. THE PLEA OF THE ASSESSEE BEFORE US IS THAT SUCH INFORMATION FURNISH ED MANUALLY BE ACCEPTED AS DATE OF COMPLIANCE TO THE PROVISIONS OF SECTION 285BA OF THE ACT. ON THE PERUSAL OF THE ORDERS PASSED BY THE DIT (CIB) IN ITA NOS. 431 TO 434/CHD/2012 I.E. IN THE CASE OF SUB REGISTRAR, JAGADHARI, WE FIND THAT THE SAID PLEA OF THE ASSESS EE HAS BEEN ACCEPTED BY THE DIT (CIB) VIDE PARA 7 AT PAGE 5 OF THE ORDER IMPOSING PENALTY UNDER SECTION 271FA OF THE ACT. THE DIT (CIB) THEREAFTER HAD ACCEPTED THE DATE OF FURNISHING OF M ANUAL INFORMATION AS DATE OF COMPLIANCE TO THE PROVISIONS OF SECTION 285BA OF THE ACT AND HAD COMPUTED THE PENALTY LEVIA BLE UNDER SECTION 271BA OF THE ACT UPTO SUCH DATE I.E. IN THE CASE OF FINANCIAL YEAR 2005-06, THE PERIOD OF PENALTY WAS D ETERMINED UPTO 11.10.2006 I.E. OF 41 DAYS, THOUGH THE INFORMATION ON NSDL WAS FURNISHED BY THE ASSESSEE ON A LATER DATE. 39. WE FIND MERIT IN THE CLAIM OF THE ASSESSEE IN T HIS REGARD IN 22 VIEW OF THE PROVISIONS OF SECTION 285BA OF THE ACT AS PER WHICH THE ASSESSEE CAN FILE THE RETURN EITHER WITH THE PR ESCRIBED AUTHORITY OR WITH THE AUTHORIZED AGENCY OF THE PRESCRIBED AUT HORITY. HOWEVER, UNDER THE PROVISO TO RULE 114E(3) OF THE I T RULES, IT IS CLARIFIED THAT THE AIR IS TO BE FILED WITH THE AUTH ORIZED AGENCY ON BEHALF OF THE DIT (CIB), WHO IN TURN WOULD UPLOAD I T ON THE SOFTWARE. IN CASES WHERE THE PERSON HAD FILED AIR WITH THE PRESCRIBED AUTHORITY BUT HAD NOT UPLOADED THE SAME THROUGH THE NSDL, THEN THE SAME WOULD BE A TECHNICAL DEFAULT AN D THE PERSON COULD BE HELD TO HAVE A REASONABLE CAUSE IN NOT FUR NISHING THE INFORMATION THROUGH NSDL AND NO PENALTY UNDER SECTI ON 271FA OF THE ACT IS LEVIABLE FOR THE PERIOD OF DEFAULT BETWE EN THE DATE OF FURNISHING THE INFORMATION MANUALLY AND THE DATE OF FURNISHING THE INFORMATION THROUGH THE AUTHORIZED AGENCY I.E. NSDL . HOWEVER, THE ONUS IS UPON THE ASSESSEE TO ESTABLISH ITS CASE OF HAVING FURNISHED COMPLETE INFORMATION MANUALLY TO THE PRES CRIBED AUTHORITY, WHICH IN-TURN WAS FURNISHED TO THE AUTHO RIZED AGENCY ON A LATER DATE. THE CASE OF REASONABLE CAUSE ON THIS ACCOUNT AND THE BENEFIT OF NON-LEVY OF PENALTY UNDER SECTION 271BA OF THE ACT ON THIS ISSUE IS BEING ACCEPTED IN THE PRESENT YEARS W HICH ARE THE INITIAL YEARS WHEN THE PROVISIONS OF SECTION 285BA OF THE ACT WERE INTRODUCED AND THERE WAS NON-AWARENESS ABOUT THE SA ID PROVISIONS OF THE ACT. HOWEVER, THE SAID PLEA WOULD NOT BE AV AILABLE TO THE ASSESSEE IN LATER YEARS AS COMPLETE AWARENESS ABOUT THE PROVISIONS OF THE ACT AND THE COMPLIANCE THROUGH THE AUTHORIZE D AGENCY HAS BEEN MADE AVAILABLE TO THE SPECIFIED PERSONS. 40. THE LD. AR FOR THE ASSESSEE HAS TIME AND AGAIN REFERRED TO VARIOUS REPLIES FILED BEFORE THE DIFFERENT OFFICERS FOR THE RESPECTIVE 23 YEARS IN COMPLIANCE TO THE NOTICES ISSUED UNDER SEC TION 133(6) OF THE ACT. RELIANCE WAS PLACED ON THE INFORMATION FUR NISHED AS PER THE REPLY PLACED AT PAGE 7 OF THE PAPER BOOK. IT M AY BE BROUGHT ON RECORD THAT THE SAID INFORMATION HAS BEEN FURNISHED BY THE ASSESSEE IN RESPONSE TO THE INFORMATION SOUGHT UNDER SECTION 133(6) OF THE ACT IN RELATION TO THE TRANSACTIONS BETWEEN RS. 5 L ACS TO RS. 30 LACS, WHICH IS NOT THE INFORMATION SOUGHT FOR UNDER SECTION 285BA OF THE ACT. HENCE, NO RELIANCE CAN BE PLACED ON SUC H REPLIES FILED BY THE ASSESSEE FROM TIME TO TIME AND THE SAME HAVE TO BE IGNORED. SIMILAR PLEA WAS MADE BY THE ASSESSEE IN RESPECT OF THE OTHER YEARS BUT THERE IS NO BASIS OF THE SAME AS THE PERUSAL OF THE PAPER BOOK REFLECTS THE SAID INFORMATION TO BE IN RESPECT OF T HE PROPERTIES TRANSACTIONS OF SALE VALUE BETWEEN RS. 5 LACS AND R S. 30 LACS WHEREAS UNDER SECTION 285BA OF THE ACT, THE INFORMA TION IS TO BE FURNISHED IN RESPECT OF THE PROPERTIES SOLD HAVING SALE VALUE OF RS. 30 LACS OR MORE. THE SAID PLEAS RAISED BY THE ASSE SSEE ARE, THUS REJECTED. 41. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND IN VIEW OF OUR OBSERVATIONS IN THE PARAS HEREIN ABOVE, IN-TURN FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE GUJRAT HIGH COURT IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CIB) (SUPRA), WE DIRECT THE ASSESSING OFFICER TO RECOMPUTE THE PENALTY LEVIABLE UNDER SEC TION 271BA OF THE ACT AND THE PERIOD OF PENALTY IN FURNISHING THE INFORMATION WOULD BE COMPUTED ON THE BASIS OF FOLLOWING DIRECTI ONS : 1. NO PENALTY TO BE LEVIED TILL THE FIRST NOTICE IS SUED TO THE ASSESSEE TO FURNISH THE REQUISITE INFORMATION HOLDING THE SAME TO BE REASONABLE CAUSE IN NOT FURNISHING THE AIRS IN TIME. IN THE ABSENCE OF ANY NOTICE ISSUED TO THE SPECIFIED PERSONS, THE DATE OF 24 FILING THE FIRST AIR WOULD BE DATE OF NOTICE. 2. WHERE THE ASSESSEE HAD FURNISHED MANUAL INFORMATION BEFORE THE CONCERNED AUTHORITIES IN RESPECT OF SPECIFIED TRANSACTIONS OF RS. 30 LACS OR MORE AND NOT UPLOADED THE SAID INFORMATION THROUGH APPOINTED AGENCY, THEN DEFAULT BETWEEN DATE OF FURNISHING MANUAL INFORMATION AND UPLOADING ON SYSTEM, BEING TECHNICAL IS TO BE IGNORED, WHICH HAS BEEN IGNORED BY DIT (CIB) IN MAJORITY OF CASES. THE ONUS IS UPON THE ASSESSEE TO FURNISH THE COMPLETE INFORMATION OF MANUALLY FURNISHING THE COMPLETE INFORMATION, WHICH IN TURN WAS UPLOADED. 3. NO PENALTY UNDER SECTION 271FA OF THE ACT TO BE IMPOSED FOR THE OVERLAPPING PERIOD OF DEFAULT. FOR EG. IF THE ASSESSEE HAD DEFAULTED IN FURNISHING AIR S FOR FOUR FINANCIAL YEARS I.E. FINANCIAL YEARS 2004- 05 TO 2007-08 AND THE FIRST NOTICE WAS RECEIVED ON 01.01.2006, THEN IN ALL THE YEARS, NO PENALTY IS LEVIABLE FOR DEFAULT UPTO 01.01.2006 AND IS LEVIABL E FOR THE DEFAULT THEREAFTER. 43. HOWEVER, IN CASES WHERE THE ANNUAL INFORMATION REPORTS HAVE BEEN FILED BY THE SPECIFIED PERSONS BEYOND THE ABOVESAID PERIOD OF LIMITATION, THE SPECIFIED PERSON WOULD BE HELD TO BE IN DEFAULT, MAKING IT ELIGIBLE TO LEVY OF PENALTY UNDE R SECTION 271FA OF THE ACT. THE DIT (CIB) IS DIRECTED TO RECOMPUTE THE SAID LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT IN LINE W ITH OUR DIRECTIONS. HOWEVER, REASONABLE OPPORTUNITY OF HEA RING SHOULD BE AFFORDED IN THIS REGARD AND THE SPECIFIED PERSON SH ALL FURNISH COMPLETE INFORMATION BEFORE HIS DIT (CIB), WITH REG ARD TO ITS 25 SEVERAL CLAIMS, IN ORDER TO FINALLY DETERMINE THE P ERIOD OF DEFAULT AND THE QUANTUM OF PENALTY LEVIABLE UNDER SECTION 2 71FA OF THE ACT. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED AS STATED ABOVE. 44. IN THE RESULT, APPEALS OF THE ASSESSEES ARE PAR TLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 30.10.2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 30 TH OCTOBER,2013 POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH