Sub Registrar/Joint Sub Registrar,, Distt.Ferozepur v. The Director of Income-tax (CIB), Chandigarh

ITA 533/ASR/2013 | 2007-2008
Pronouncement Date: 10-10-2013 | Result: Dismissed

Appeal Details

RSA Number 53320914 RSA 2013
Bench Amritsar
Appeal Number ITA 533/ASR/2013
Duration Of Justice 1 month(s) 29 day(s)
Appellant Sub Registrar/Joint Sub Registrar,, Distt.Ferozepur
Respondent The Director of Income-tax (CIB), Chandigarh
Appeal Type Income Tax Appeal
Pronouncement Date 10-10-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 10-10-2013
Date Of Final Hearing 11-10-2013
Next Hearing Date 11-10-2013
Assessment Year 2007-2008
Appeal Filed On 12-08-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU JUDICIAL MEMBER AND SH. B.P.JAIN ACCOUNTANT MEMBER I.T.A. NOS.530 TO 534(ASR)/2013 ASSESSMENT YEARS:2005-06 TO 2009-10 TAN :AMRT11358E SUB REGISTRAR/JOINT SUB REGISTRAR VS. DIRECTOR OF I NCOME TAX (CIB) ZIRA DISTT. FEROZEPUR. CHANDIGARH (APPELLANT) (RESPONDENT) APPELLANT BY:SH.P.N.ARORA ADVOCATE RESPONDENT BY:SH.AMRIK CHAND DR DATE OF HEARING:10/10/2013 DATE OF PRONOUNCEMENT:10/10/2013 ORDER PER BENCH ; THIS BUNCH OF FIVE APPEALS ARISE FROM DIFFERENT OR DERS OF CIT(A) BATHINDA EACH DATED 31.01.2013 FOR THE ASSESSMENT YEARS 2005-06 TO 2009- 10. 2. IN ALL THE CASES THE ASSESSEE HAS TAKEN IDENT ICAL GROUNDS OF APPEAL. THE GROUNDS RAISED IN ITA NO.530(ASR)2013 WHICH AR E IDENTICAL IN ALL OTHER APPEALS EXCEPT VARIATION IN AMOUNTS ARE REPRODUCED AS UNDER: ITA NOS. 530 TO 534(ASR)/2013 2 1. THAT THE LD. CIT(A) BATHINDA ERRED IN CONFRM ING THE PENALTY U/S 271FA TO THE TUNE OF RS.1 30 400/- AGAINST TH E PENALTY LEVIED BY THE DIRECTOR OF INCOME TAX (CIB) CHANDI GARH AT RS.1 76 000/-. 2. THAT THE PENALTY U/S 271FA HAS BEEN CONFIRMED BY TH E CIT(A) AGAINST THE FACTS & CIRCUMSTANCES OF THE CASE. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOS ED OFF. 3. THE BRIEF FACTS OF THE CASE IN I.T.A. NO. 530/AS R/2013 ARE THAT THE SUB-REGISTRAR ZIRA WAS REQUIRED TO FILE ANNUAL IN FORMATION RETURN FOR THE FINANCIAL YEAR MENTIONED HEREIN BELOW: FINANCIAL YEAR DUE DATE OF FILING OF AIR FILED ON DELAY IN DAYS 1) 2004-05 30.11.2005 27.10.2010 1760 DAYS 2) 2005-06 31.08.2006 27.10.2010 1517 DAYS 3) 2006-07 31.08.2007 27.10.2010 1152 DAYS 4) 2007-08 31.08.2008 27.10.2010 787 DAYS 5) 2008-09 31.08.2009 27.10.2010 422 DAYS 4. NOTICES WERE ISSUED FOR FILING AIRS FOR DIFFEREN T FINANCIAL YEARS AT MANY OCCASIONS AS UNDER: I) 0N 20.11.2006 FOR F.Y. 2005-06 II) ON 04.04.2007 FOR F.Y. 2004-05 III) ON 04.04.2007 FOR F.Y. 2005-06 IV) ON 11.01.2008 FOR F.Y. 2004-05 2005-06 & 2006-07 ITA NOS. 530 TO 534(ASR)/2013 3 V) ON 12.12.2008 FOR F.Y. 2004-05 2005-06 200 6-07 & 2007-08 VI) ON 21.05.2009 FOR F.Y. 2004-05 2005-06 2006 -07 2007-08 & 2008-09 VI) ON 20.01.2010 AND 12.03.2010 FOR F.Y. 2004-05 TO 2008-09 5. NO AIR WAS FILED BY THE FILER. A SHOW CAUSE NOT ICE WAS ISSUED ON 14.09.2010 AS TO WHY A PENALTY UNDER SECTION 271FA SHOULD NOT BE IMPOSED UPON THE FILER. IT IS ONLY AFTER THIS SHOW CAUSE T HE FILER FILED THE AIRS FOR DIFFERENT FINANCIAL YEARS ON 27.10.2010 AS MENTIONE D HEREINABOVE. IN RESPONSE TO SHOW CAUSE THE ASSESSEE REPLIED THAT T HERE WAS NO INTENTIONAL DEFAULT IN LATE FILING OF AIRS. 6. IT WAS OBSERVED BY THE DIT(CIB) CHANDIGARH THA T NEITHER SPECIFIC WRITTEN SUBMISSIONS/ARGUMENTS WERE PUT FORTH BY THE FILER IN RESPONSE TO SHOW CAUSE NOTICE GIVEN NOR ANY DOCUMENTARY EVIDENC E WAS MADE AVAILABLE BY THE FILER FOR SHOWING REASONABLE CAUSE. THE REPL Y THAT NO INTENTIONAL DEFAULT IS THERE CANNOT BE A REASONABLE CAUSE AND ACCORDINGLY THE DIT(CIB) LEVIED THE PENALTY @ RS. 100/- PER DAY OF DEFAULT I N EACH FINANCIAL YEAR. 7. THE LD. COUNSEL FOR THE ASSESSEE MR. P.N.ARORA ADVOCATE ARGUED THAT THE FACTS IN THE PRESENT CASES ARE IDENTICAL T O THE FACTS DECIDED BY THE ITAT AMRITSAR BENCH IN ITA NOS. 137 TO 140(ASR)/2 013 AND OTHERS VIDE ORDER DATED 30.05.2013 AND THERE WAS NO INTENTIONAL DEFAULT OF THE ASSESSEE ITA NOS. 530 TO 534(ASR)/2013 4 IN LATE FILING THE AIR BEYOND THE TIME AS REQUIRED UNDER SECTION 285BA(1) OF THE ACT. 8. THE LD. DR MR. AMRIK CHAND ON THE OTHER HAND RELIED UPON THE DECISION OF THE ITAT AMRITSAR BENCH DATED 30.05.2 013 IN ITA NOS. 137 TO 140(ASR)/2013 AND OTHERS IN THE CASE OF THE SUB REG ISTRAR BARIWALA DISTT. MUKTSAR VS. DIRECTOR OF INCOME TAX (CIB) CHANDIGAR H & OTHERS SINCE THE ISSUE IS IDENTICAL. HE FURTHER SUBMITTED THAT THE REQUIREMENT UNDER SECTION 285BA IS TO FILE AIR IN TIME. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS OF THE CASE. WE ARE OF THE VIEW THAT THE ISSUE IN THE PRE SENT APPEALS IS IDENTICAL TO THE ISSUE DECIDED BY THIS BENCH IN ITA NOS. 137 TO 140(ASR)/2013 AND OTHERS VIDE ORDER DATED 30.05.2013 AND THEREFORE O UR ORDERS THEREIN SHALL APPLY IN THESE APPEALS WHEN THE FACTS IN THOSE APP EALS ARE IDENTICAL TO THE FACTS IN THE APPEALS BEFORE US. THE FILING OF AIR U NDER THE ACT I.E. UNDER SECTION 285BA(1) IS MANDATORY WITHIN THE TIME PRESC RIBED AND THERE IS NO EXCEPTION TO THE SAME. THE ASSESSEE HAS NOT ESTABLI SHED ANY REASONABLE CAUSE AND THEREFORE NOT COVERED UNDER THE PROVISIONS OF S ECTION 273B OF THE ACT. IT IS EVIDENT THAT THE ISSUE IN THE PRESENT APPEALS IS IDENTICAL TO THE ISSUE INVOLVED IN APPEALS IN ITA NO.137 TO 140(ASR)/2013 & OTHERS (SUPRA) AND OUR ORDER THEREIN SHALL BE APPLICABLE IN THE PRESEN T APPEALS. FOR THE SAKE OF ITA NOS. 530 TO 534(ASR)/2013 5 CLARITY WE REPRODUCE PARA 15 & 16 OF OUR ORDER DA TED 30.05.2013 IN ITA NOS. 137 TO 140(ASR)/2013 AS UNDER: 15. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE FACTS OF THE CASE. IN THE PRESENT CASE THE MAIN ARGUMENT OF TH E LD. COUNSEL FOR THE ASSESSEE MR. P.N.ARORA WAS THAT THE ASSESSEE WAS IGNORANT OF LAW I.E. ABOUT SECTION 285BA OF THE ACT. HE ARGUED THAT THE INCOME TAX AUTHORITY HAS NOT SERVED ANY NOTICES ON THE ASSESS EE AND WHEN THE NOTICE WAS SERVED THE ASSESSEE FILED THE ANNUAL I NFORMATION RETURN (IN SHORT AIR) AND NO PENALTY SHOULD BE ACCORDINGLY LEVIED UPON THE ASSESSEE. IN THIS REGARD WE ARE OF THE VIEW ON PE RUSAL OF SECTION 285BA OF THE ACT WHICH WAS INTRODUCED BY THE FINA NCE (NO.2) ACT 2004 W.E.F.1.4.2005 IT IS NOT THE CASE THAT THIS SECTION HAS BEEN INTRODUCED FOR THE FIRST TIME BY FINANCE (NO.2) AC T 2004. PRIOR TO ITS SUBSTITUTION SECTION 285BA WAS INSERTED BY THE F INANCE ACT 2003 W.E.F. 1.4.2004 WHERE ANY ASSESSEE WHO ENTERS INT O ANY FINANCIAL TRANSACTION AS MAY BE PRESCRIBED WITH ANY OTHER PERSON SHALL FURNISH WITHIN THE PRESCRIBED TIME AN ANNUAL INF ORMATION RETURN IN SUCH FORM AND MANNER AS MAY BE PRESCRIBED IN RESP ECT OF SUCH FINANCIAL TRANSACTION ENTERED INTO BY HIM DURING ANY PREVIOUS YEAR. RULE 114A TO 114E PRESCRIBES SUCH RETURN TO BE FU RNISHED IN FORM NO.61A AND SHALL BE VERIFIED IN THE MANNER INDICAT ED THEREIN. AT ITEM NO.6 OF THE SAID RULE RETURN SHALL BE FURNISHED ON OR BEFORE 31 ST AUGUST IMMEDIATELY FOLLOWING THE FINANCIAL YEAR I N WHICH THE TRANSACTION IS REGISTERED OR RECORDED. SECTION 285 BA(5) IS REPRODUCED FOR THE SAKE OF CLARITY AS UNDER: SECTION 285BA(5) WHERE A PERSON WHO IS REQUIRED TO FURNISH AN ANN UAL INFORMATION RETURN UNDER SUB-SECTION (1) HAS NOT FURNISHED THE SAME WITHIN THE PRESCRIBED TIME THE PRESCRIBED I NCOME-TAX AUTHORITY MAY SERVE UPON SUCH PERSON A NOTICE REQ UIRING HIM TO FURNISH SUCH RETURN WITHIN A PERIOD NOT EXCEE DING SIXTY DAYS FROM THE DATE OF SERVICE OF SUCH NOTICE AND HE S HALL FURNISH THE ANNUAL INFORMATION RETURN WITHIN THE TIME SPECIFIED IN THE NOTICE.] 15.1. THE LD. COUNSEL FOR THE ASSESSEE HAS TAKEN T HE SHELTER OF SECTION 285BA(5) OF THE ACT WHICH IS REPRODUCED HEREINABO VE THAT THE INCOME TAX AUTHORITY ARE UNDER A MANDATE TO SERVE THE NOTICE TO THE ASSESSEE IN CASE ANNUAL INFORMATION RETURN IS NOT FILED FOR YEARS ITA NOS. 530 TO 534(ASR)/2013 6 TOGETHER AFTER INSERTION OF THE SECTION BY THE FI NANCE (NO.2) ACT 2003 W.E.F. 1.4.2004 INITIALLY AND THEREAFTER BY FINANC E (NO.2) ACT 2004 W.E.F. 1.4.2005 MENTIONED HEREINABOVE. WHEREAS THI S IS NOT A CASE THE WORDS USED BY THE STATUTE IN SECTION 285BA(5) GIV ES OPTION FOR THE INCOME TAX AUTHORITY TO SERVE NOTICE WHICH MAY OR MAY NOT BE SERVED UPON. THE WORD MAY USED IN SECTION 285BA( 5) CLEARLY INDICATES THE OPTION FOR THE INCOME TAX AUTHORITY . IT IS NOT OBLIGATORY ON THE INCOME TAX AUTHORITY TO SERVE SUCH NOTICE. THEREFORE INTERPRETATION HAS TO BE STRICTLY CONSTRUED. THERE IS NO AMBIGUITY IN THE SAME. THE COURTS CANNOT ADD OR AMEND AND BY CONSTR UCTION CANNOT MAKE UP THE DEFICIENCIES IN THE ACT. IT IS CONTRAR Y TO ALL RULES OF CONSTRUCTION UNLESS THE PROVISION AS IT STANDS IS MEANINGLESS OR HAVING A DOUBTFUL MEANING. WE ARE NOT ENTITLED TO USURP LEGISLATIVE FUNCTION DISGUISE OF INTERPRETATION. THE COURTS ARE MEANT T O INTERPRET LAW CANNOT LEGISLATE IT. OUR VIEWS FIND SUPPORTS FROM THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF UNION OF INDI A AND OTHERS VS. DHARMENDRA TEXTILES PROCESSORS AND OTHERS REPORTED IN (2008) 306 ITR 277. IN THE PRESENT CASE ISSUANCE AND SERVIC E OF NOTICE UNDER SECTION 285BA(5) IS NOT OBLIGATORY ON THE INCOME T AX AUTHORITY. THEREFORE ARGUMENTS MADE BY THE LD. COUNSEL FOR T HE ASSESSEE MR. P.N.ARORA ARE REJECTED TO THIS EXTENT. 15.2. AS REGARDS THE NOTICE DATED 20.11.2006 ISSUE D BY CIT (CIB) CHANDIGARH TO THE ASSESSEE IT IS SURPRISING THAT HOW THE SAID NOTICE HAS BEEN IN THE POSSESSION OF THE ASSESSEE. NOTHIN G HAS BEEN BROUGHT ON RECORD BY THE LD. COUNSEL FOR THE ASSESSEE IN T HIS RESPECT. REASONABLE PRESUMPTION IS MADE THAT THIS NOTICE HA S ALSO BEEN SERVED UPON THE ASSESSEE DATED 20.11.2006 AND WHICH HAS NOT BEEN COMPLIED WITH. AS PER REMAND REPORT AS ARGUED BY THE LD. D R AND ALSO RECORD OF DIT(CIB) WHICH HAS BEEN VERIFIED BY THE LD. COU NSEL THAT VARIOUS NOTICES HAVE BEEN SERVED I.E. ON 20.11.2006 04.04 .2007 11.01.2008 12.12.2008 21.05.2009 20.01.2010 & 12.03.2010. A LL THE SAID SEVEN NOTICES REMAINED UN-COMPLIED WITH AT THE LAST KN OWN ADDRESS GIVEN BY THE ASSESSEE WHICH IS AS UNDER: SUB REGISTRAR BARIWALA MUKTSAR 15.3. PENALTY ORDER DATED 22.12.2010 HAS BEEN SERV ED ON THE ASSESSEE IS NOT IN DISPUTE AGAINST WHICH THE ASSESSEE FILED APPEAL ON 31.01.2011 BEFORE THE LD. CIT(A) BATHINDA. THE LD. CIT(A)S ORDER DATED ITA NOS. 530 TO 534(ASR)/2013 7 14.12.2012 HAS ALSO BEEN SERVED UPON THE ASSESSEE ON 09.01.2013 AT THE SAME ADDRESS HAS ALSO NOT BEEN DISPUTED BY THE LD. COUNSEL FOR THE ASSESSEE. THEREFORE THE ARGUMENTS MADE BY THE LD . COUNSEL FOR THE ASSESSEE THAT ONE NOTICE DATED 20.11.2006 HAVING M ENTIONED WRONG DISTRICT IS PART OF THE PAPER BOOK CANNOT PROVE T HAT THE NOTICE DATED 20.11.2006 AND OTHER SIX NOTICES AS MENTIONED HER EINABOVE HAVE NOT BEEN ISSUED AND SERVED ON THE ASSESSEE. THEREFORE THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSE IS REJECTED THAT NO NO TICE U/S 285BA(5) HAS BEEN ISSUED/SERVED UPON THE ASSESSEE EVEN IN REMAN D PROCEEDINGS WHEN ALL NOTICES WERE CONFRONTED. THEREFORE THE R ELIANCE PLACED BY THE LD. COUNSEL FOR THE ASSESSEE ON THE DECISIONS OF VARIOUS COURTS OF LAW ON SERVICE OF NOTICE CANNOT BE MADE APPLICABLE IN THE PRESENT CASE AND CANNOT HELP THE ASSESSEE. 15.4. AS REGARDS THE DECISION OF THE HONBLE GUJAR AT HIGH COURT IN THE CASE OF PATAN NAGRIK SAHAKARI BANK LTD. VS. DI RECTOR OF INCOME TAX (SUPRA) THE LD. CIT(A) HAS TAKEN FULL COGNIZA NCE OF THE SAID DECISION AND HAS DIRECTED THE CIT(CIB) TO RECOMPUT E THE DEFAULT W.E.F. 01.12.2006 INSTEAD OF 31.08.2006 FOR THE ASSESSMEN T YEAR 2006-07 AND THEREAFTER IN THE FOLLOWING YEARS HAS RIGHTLY CONF IRMED THE DEFAULT BEING THE FIRST ADVISORY LETTER ISSUED ON 20.11.2006 IN VIEW OF OUR FINDINGS HEREINABOVE. 15.5. AS REGARDS THE REASONABLE CAUSE AS MENTIONE D HEREINABOVE THE LD. CIT(A) HAS TAKEN COGNIZANCE IN THE CASE OF PA TAN NAGRIK SAHAKARI BANK LTD. VS. DIRECTOR OF INCOME TAX (SUP RA) DECIDED BY THE HONBLE GUJARAT HIGH COURT. BUT AT THE SAME TIME WE MAY REFER THAT IGNORANCE OF LAW IS NOT AN EXCUSE AS PER OUR FIND INGS HEREINABOVE AND ALSO AS PER DECISION OF THE HONBLE GUJRAT HIG H COURT IN THE CASE OF PATTAN NAGRIK SAHAKARI BANK LTD. (SUPRAAND THE SUB REGISTRAR CANNOT BE AN EXCEPTION TO THE LAW LAID DOWN BY TH E HONBLE SUPREME COURT MENTIONED HEREINABOVE. IT IS SETTLED LAW THA T IGNORANCE OF LAW IS OF NO EXCUSE AS DECIDED BY THE HONBLE SUPREME CO URT IN THE CASE OF MOTILAL PADAMPAT SUGAR MILLS CO. LTD. VS. STATE OF UTTAR PRADESH & ORS REPORTED IN (1979) 118 ITR 326 (SC). 15.6. IN VIEW OF THE ABOVE DISCUSSIONS ALL THE G ROUNDS RAISED BY THE ASSESSEE IN ITA NOS. 137 TO 140(ASR)/2013 ARE DISM ISSED. 16. NOW WE TAKE UP THE APPEAL OF THE ASSESSEE IN ITA NOS. 138 TO 140(ASR)/2013 IN THE CASE OF SUB REGISTRAR BARIWA LA FOR THE ASSESSMENT YEARS 2007-08 TO 2009-10. SINCE THE FAC TS IN THE PRESENT ITA NOS. 530 TO 534(ASR)/2013 8 CASE ARE IDENTICAL TO THE FACTS IN ASSESSEES CAS E FOR THE ASSESSMENT YEAR 2006-07 IN ITA NO.137(ASR)/2013 AND THEREFORE OUR DECISION IN ITA NO.137(ASR)/2013 IS IDENTICALLY APPLICABLE IN THE PRESENT THREE APPEALS AND ACCORDINGLY ORDER OF THE LD. CIT(A) I S CONFIRMED AND WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). ACCORDINGLY ALL THE GROUNDS RAISED BY THE ASSESSEE IN ITA NOS. 138 TO 140(ASR)/2013 ARE DISMISSED. 10. KEEPING IN VIEW THE AFORESAID DISCUSSIONS AND OUR DECISION IN ITA NOS. 137 TO 140(ASR)/2013 AND OTHERS (SUPRA) REPROD UCED HEREINABOVE SHALL BE APPLICABLE IN THE PRESENT APPEALS AND ACCORDING LY ALL THE GROUNDS RAISED BY THE ASSESSEE IN ALL THE FIVE APPEALS MENTIONED H EREINABOVE ARE DISMISSED. 11. IN THE RESULT ALL THE APPEALS IN ITA NOS. 530 TO 534(ASR)/2013 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH OC TOBER. 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10TH OCTOBER 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SUB REGISTRAR/JOINT SUB REGISTRAR FER OZEPUR. 2. THE DIRECTOR OF INCOME TAX (CIB) CHANDIGARH. 3. THE CIT(A) BATHINDA. 4. THE CIT BATHINDA. 5. THE SR DR ITAT AMRITSAR. TRUE COPY BY ORDER