Sub Registrar, Kullu V. Director of Income Tax (I&CI), Chandigarh

ITA 824/CHANDI/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5188 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 17-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: PANKAJ DHIMAN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 824 TO 828/CHD/2017 ASSESSMENT YEAR: 2004-05 TO 2008-09 SUB REGISTRAR VS. DIRECTOR OF INCOME TAX (I&CI) KULLU CHANDIGARH PAN NO. PTLT12528F (APPELLANT) (RESPONDENT) APPELLANT BY : SH. PANKAJ DHIMAN RESPONDENT BY : SH. MANJIT SINGH DATE OF HEARING : 30/11/2017 DATE OF PRONOUNCEMENT : 28/02/2018 ORDER PER BENCH. THE APPEALS HAVE BEEN DELAYED BY 15 DAYS. VIDE LETT ER DT. 19/05/2017, IT HAS BEEN SUBMITTED BY THE ASSESSEE THAT THE DELAY O F TWO WEEKS WAS DUE TO THE FACT THAT THE ASSESSEE IS A SUBORDINATE OFFICE BELO W THE DISTRICT LEVEL AND OBTAINING THE ADMINISTRATIVE PERMISSION FROM THE DI STRICT REGISTRAR CUM DISTRICT MAGISTRATE AND SUBSEQUENT ENGAGEMENT OF LEGAL EXPE RT / CONSULTANT TO FILE THE APPEAL. FURTHER THE ASSESSEE SUBMITTED THAT THE ASS ESSEE IS A PUBLIC DEALING OFFICE AND DAILY DEALS WITH CONSTANT FLOW OF PUBLIC FOR REGISTRATION AND OBTAINING CERTIFICATES WHICH LEAD TO DELAY AND PLEADED FOR CO NDONATION. OWING TO THE FACTS OF THE CASE AND THE REASONS GIVEN BY THE ASSE SSEE THE DELAY OF 15 DAYS IS HEREBY CONDONED. 2 2. ALL THE ABOVE APPEALS HAVE BEEN FILED BY THE ASS ESSEE AGAINST THE COMMON ORDER OF LD. CIT (A), AMRITSAR CAMP AT PALAM PUR DT. 30/01/2017. SINCE THE ISSUES RAISED IN ALL THE ABOVE APPEALS AR E COMMON THEREFORE THEY ARE BEING DISPOSED OFF BY A COMMON ORDER FOR T HE SAKE OF CONVENIENCE. WE SHALL TAKE ITA NO. 824/CHD/2017 AS A LEAD CASE I N WHICH THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-I AS WELL AS LD. DIRECTOR OF INCOME TAX (I&CI) HAS LEVIED THE PENALTY OF RS. 1,87,000/- U/S250(6) OF THE INCOME TAX ACT, 1961, ON MERELY INFERENCES, PRESUMPTION, SURMISES, CONJECTUR ES. THEREFORE, PENALTY BE WITHDRAWN. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-I AS WELL AS LD. DIRECTOR OF INCOME TAX, (I&CI) CHANDIGARH HAVE ERRED WHILE PASSING THE ORDER DATE 30.01-2017 AND 27-03-2017 RESPECTIVELY. 3. THAT THE LD. DIRECTOR OF INCOME TAX, (I&CI) CHANDIG ARH BRUSHED ASIDE THE SUBMISSIONS MADE BY THE APPELLANT AS IT WAS SUBMITTED BEFORE TH E LD. DIRECTOR THAT SINCE SUB REGISTRAR KULLU ACTS ONLY ON BEHALF OF THE GOVERNMENT DEPARTMENT AN D THERE IS A PROCEDURE ONLY TO FILE ANNUAL INCOME TAX RETURN BEFORE THE INCOME TAX DEPARTMENT AND NO CASH OF PUBLIC EXCHEQUER IS INVOLVED IN FILING AIR BEFORE THE INCOME TAX DEPART MENT. IT IS FURTHER SUBMITTED THAT WHEN THE MATTER CAME IN TO THE NOTICE OF WORTHY DEPUTY COMMI SSIONER KULLU HE IMMEDIATELY ISSUED SHOW CAUSE NOTICE TO THE THEN SUB REGISTRAR AS WELL AS T O THE THEN REGISTRATION CLERK. IT IS FURTHER SUBMITTED THAT DUE TO EXIGENCY AND HEAVY WORK IN TH E OFFICE THE MATTER COULD NOT BE ATTENDED TIMELY FOR WHICH THE GOVERNMENT CAN NOT BE HELD LIA BLE BY IMPOSING PENALTY OF RS. 1,87,000/-. AS IT WOULD BE UNNECESSARY BURDEN ON PUBLIC EXCHEQUER. HE NCE, SAME IS ABLE TO BE WITHDRAWN IN THE INTEREST OF JUSTICE. 4. THAT THE FIRST APPELLANT AUTHORITY HAS NOT APPRECIA TED THE FACTS OF THE CASE IN ITS RIGHT PERSPECTIVE AND HAS WRONGLY AND ILLEGALLY DISMISSED THE APPEAL FILED BY THE APPELLANT. 5. THAT THE FIRST APPELLANT AUTHORITY WHILE DISMISSING THE APPEAL FILED BY THE APPELLANT HAS NOT GRANTED DUE OPPORTUNITY OF BEING HEARD TO THE APPEL LANT AND THIS ACT ON THE PART OF FIRST APPELLANT AUTHORITY IS AGAINST THE PRINCIPLES OF NATURAL JUST ICE AS SUCH THE IMPUGNED ORDER DATED 30-01-2017 AND THE RECOVERY NOTICE DATED 27-03-2017 ARE NOT LE GALLY TENABLE AND THE SAME BE SET-ASIDE IN THE INTEREST OF JUSTICE. 6. THAT DURING PENDENCY OF THIS APPEAL THE RECOVERY NO TICE DATED 27-03-2017 MAY KINDLY BE ALSO STAYED TILL THE FINAL DISPOSAL OF THIS APPEAL AND D ELAY IN FILLING THE APPEAL IF ANY BE ALSO CONDONED IN THE INTEREST OF JUSTICE. 3. BRIEF FACTS OF THE CASE ARE THAT OWING TO THE DE LAY IN FILING ANNUAL INFORMATION RETURN (AIR) IN RESPECT OF PURCHASE AND SALE BY ANY PERSON OF IMMOVABLE PROPERTY VALUED AT RS. 30 LACS. A SHOW CA USE NOTICE FOR THE FINANCIAL YEAR 2004-05, 2005-06, 2006-07,2007-08 & 2008-09 W AS ISSUED BY OFFICE OF THE DIT (CIB) ON 14/09/2010 & 26/10/2010 ASKING THE SUB-REG ISTRAR TO SHOW CAUSE AS TO WHY PENALTY UNDER SECTION 271FA OF THE ACT SHOULD N OT BE IMPOSED UPON IT FOR FAILURE TO FURNISH THE AIRS IN TIME, AND THE REPLY WAS SOUGHT BY 04/11/2010. 3 ON 04/11/2010 SHRI. B. R. JOSHI, NAIB TEHSILDAR FRO M O/O THE SUB REGISTRAR, KULLU, DISTT. KULLU ATTENDED AND FLED INFORMATION WHICH IS SUPPOSED TO BE AIRS VIDE HIS OFFICE LETTER NO. 225/RC DT. 30/09/2010, FOR THE F. Y 2004-05 TO 2008-09. HE WAS ASKED TO FILE AIRS FOR THE F.Y. 2004-05 TO 2008-09 AND SUBMIT PROOF OF THE SAME ALONGWITH WRITTEN REPLY FOR NON FILING OF THE AIRS ON 10/12/2010 BY THE DIT(CIB). ON THE GIVEN DATE SHRI. B. R. JOSHI NAIB TEHSILDAR REQUESTED FOR ADJOURNMENT AND CASE WAS ADJOURNED TO 11/01/2010. ON 11/01/2011 NEITHER ANYBODY ATTENDED THE OFFICE NOR ANY REPLY SUBMITTED. IT WAS HELD THAT THE FILER HAS NOTHING TO SAY REGARDIN G NON/LATE FILING OF AIRS. THE INFORMATION SUBMITTED VIDE LETTER DT. 30/09/2010 IS RELATES TO F.Y. 2004-05 TO 2008- 09 EXCEPT 2006-07. TREATING THE INFORMATION AS AIRS PENALTY UNDER SECTION 271 FA OF THE I.T. ACT, 1961 IS CALCULATED UP TO THE DATE OF RECEIPT OF THE INFORMATION I.E. 05/10/2010 AND FOR THE F.Y. 2006-07, PENALTY IS CAL CULATED UP TO THE DATE OF ORDER AS THE FILER HAS FAILED TO FURNISH AIRS EITHE R ELECTRONICALLY OR MANUALLY. AS PER REPLY DATED 30/09/2010 THE FILER SUBMITTED AS UNDER : WITH REFERENCE TO YOUR OFFICE LETTER NO. DDIT/CIB /CHD/2010-11 /2818 DATED 14/09/2010 ON THE ABOVE CITED SUBJECT, DUE TO HEAVY QUANTUM OF WORK, THE REQUISITE INFORMATION/RETURN COULD NOT BE FURNISHED AND EARLIER, DELAY IS HIGHLY REGRETTED. SINCE THE REPLY FILED BY THE SUB REGISTRAR IN RESPO NSE TO THE SHOW CAUSE NOTICE, WAS FOUND TO BE UNSATISFACTORY, THEREFORE, EXPLANAT ION FILED BY THE FILER WAS FOUND UNACCEPTABLE BY THE DIT(CIB) AND LEVIED PENAL TY OF RS. 6,24,000/- UNDER SECTION 271FA OF THE INCOME TAX ACT, 1961. 4. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE C IT(A)-1 AMRITSAR AT PALAMPUR. THE LD. CIT(A) VIDE ORDER DT. 30/01/2017 CONFIRMED THE PENALTY LEVIED. 5. BEFORE US, THE ASSESSEE HAS TAKEN AT GROUND NO. 5 THAT ASSESSEE HAS NOT GRANTED DUE OPPORTUNITY OF BEING HEARD AND ON THE P ART OF THE FIRST APPELLATE 4 AUTHORITY THE ACTION IS AGAINST THE PRINCIPLES OF N ATURAL JUSTICE AND REQUESTED THAT DUE OPPORTUNITY MAY BE GIVEN. THE REVENUE HAS OBJE CTED FOR GIVING ANOTHER OPPORTUNITY TO THE ASSESSEE. HOWEVER KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTA NCES WE FEEL THAT INTEREST OF JUSTICE WOULD BE MET IF THE ASSESSEE IS GIVEN ANOTH ER OPPORTUNITY OF BEING HEARD BY THE LD. CIT(A). 6. HENCE WE HEREBY DIRECT THE LD. CIT(A) THAT DUE OPPO RTUNITY MAY BE GIVEN TO THE ASSESSEE AND PASS A SPEAKING ORDER ON JURISD ICTION VESTED TO THE LD. CIT(A) AS PER SECTION 246A WITH REFERENCE TO SECTION 271FA AND DECIDE THE CASE ON MERITS. THE ASSESSEE IS ALSO DIRECTED TO COMPLY TO THE DIRECTIONS OF THE LD. CIT(A) WITH UTMOST CARE AND DISCIPLINE. 7. IN THE RESULT ALL THE ABOVE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DIVA SINGH) (DR. B.R.R. KUMA R) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 2/02/2018 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR