Sub Registrar, Patiala v. DIT (CIB), Chandigarh

ITA 87/CHANDI/2014 | 2005-2006
Pronouncement Date: 16-04-2014 | Result: Allowed

Appeal Details

RSA Number 8721514 RSA 2014
Assessee PAN BBYPS8535G
Bench Chandigarh
Appeal Number ITA 87/CHANDI/2014
Duration Of Justice 2 month(s) 30 day(s)
Appellant Sub Registrar, Patiala
Respondent DIT (CIB), Chandigarh
Appeal Type Income Tax Appeal
Pronouncement Date 16-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 16-04-2014
Assessment Year 2005-2006
Appeal Filed On 17-01-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R.SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA JUDICIAL MEMBER ITA NOS.87 TO 91 /CHD/2014 ASSESSMENT YEARS : 2005-06 TO 2009-10 THE SUB REGISTRAR VS. DIRECTOR OF INCOME TAX (C IB) DUDHAN SADHA CHANDIGARH. DISTT. PATIALA. PAN: BBYPS8535G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMAN PARTI RESPONDENT BY : SHRI J.S.NAGAR DR DATE OF HEARING : 31.03.2014 DATE OF PRONOUNCEMENT : 16.04.2014 O R D E R PER SUSHMA CHOWLA J.M. : THIS BUNCH OF FOUR APPEALS FILED BY THE ASSESSEE AR E AGAINST THE CONSOLIDATED ORDER OF THE COMMISSIONER OF INCOME TA X (APPEALS) PATIALA DATED 25.10.2013 AGAINST THE ORDER PASSED U NDER SECTION 271FA OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). 2 . ALL THE FOUR APPEALS RELATING TO THE SAME ASSESSEE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLI DATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ONLY COMMON GROUND OF APPEAL RAISED BY THE A SSESSEE IN ALL THE APPEALS READS AS UNDER: 1. BECAUSE THE ACTION FOR UPHOLDING THE LEVY OF PE NALTY U/S 271FA AMOUNTING TO RS.60 500/- FOR ASSESSMENT YEAR 2005-06 RS.33 200/- FOR ASSESSMENT YEAR 2006-07 RS.1 29 300/- FOR ASSESSMENT YEAR 2007- 2 08 RS.92 200/- FOR ASSESSMENT YEAR 2008-09 AND RS.55 700/- FOR ASSESSMENT YEAR 2009-10 IS BEING CHALLENGED ON FACTS & LAW. EVEN THE QUANTUM OF LEVY TOO IS UNDER CHALLENGE. 4. THE ONLY ISSUE RAISED IN THE PRESENT APPEALS IS AGAINST THE PENALTY LEVIED UNDER SECTION 271FA OF THE ACT. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E WAS OBLIGED TO FILE ANNUAL INFORMATION REPORTS FOR THE FINANCIAL YEARS 2004-05 TO 2008-09 WHICH WERE FILED BELATEDLY. THE ASSESSING OFFICER IN VIEW THEREOF INITIATED PENALTY PROCEEDINGS UNDER SECTION 271FA O F THE ACT. THE ASSESSEE SOUGHT VARIOUS OPPORTUNITIES BEFORE THE AS SESSING OFFICER FOR FILING THE INFORMATION AND NO REPLY WAS RECEIVED BY THE ASSESSING OFFICER THE ASSESSING OFFICER OBSERVED THAT THE AS SESSEE STATUTORILY WAS REQUIRED TO FILE AIR WITHIN THE TIME PRESCRIBED UND ER SECTION 285BA OF THE ACT VOLUNTARILY SUO MOTO AND WITHOUT ANY NOTIC E FROM THE DEPARTMENT. AS THE ASSESSEE HAD FAILED TO SHOW THE REASONABLE CAUSE FOR LATE FILING OF AIR THE ASSESSING OFFICER IMPOSED P ENALTY UNDER SECTION 271FA OF THE ACT @ RS.100/- PER DAY FOR DEFAULT CA LCULATED FOR THE FINANCIAL YEARS UNDER CONSIDERATION AS UNDER: FINANCIAL YEAR PERIOD OF DEFAULT NO. OF DAYS OF DEFAULT 2004 - 05 30 .1 1 .2005 TO 27 .0 7 .2007 6 05 DAYS 2005 - 06 3 L. 0 8 .2006 TO 27 .0 7 .2007 3 32 DAYS 200 6 - 0 7 3L. 08 .200 7 TO 1 5 .0 3 .201 1 1293 DAYS 200 7 - 0 8 3 1.0 8 .200 8 TO 1 0 .0 3 .201 1 922 DAYS 2008 - 09 31.08.2009 TO 1 0.03.2011 557 DAYS 6. THE CIT (APPEALS) NOTED THAT THE APPEALS FILED B Y THE ASSESSEE WERE LATE. THE CIT (APPEALS) REJECTED THE CONDONAT ION OF APPLICATION FILED BY THE ASSESSEE AND DID NOT CONDONE THE DELAY INFILLING THE APPEALS. THE CIT (APPEALS) THEREAFTER DISMISSED THE APPEALS FILED BY THE ASSESSEE. 3 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF T HE CIT (APPEALS). THE LEARNED A.R. FOR THE ASSESSEE HAS MOVED AN APPL ICATION FOR ADJOURNMENT WHICH WAS WITHDRAWN AND CONSEQUENTLY TH E APPEALS WERE HEARD. IT WAS POINTED OUT BY THE LEARNED A.R. FOR THE ASSESSEE THAT THERE WAS DELAY OF 52 DAYS IN FILING THE APPEALS BEFORE T HE CIT (APPEALS) AND THE REASON FOR DELAY WAS THAT THE DELAY IN FILING T HE APPEALS WAS NOT DELIBERATE AND WAS CAUSED BY CIRCUMSTANCES BEYOND T HE CONTROL OF THE ASSESSEE. 8. THE LEARNED D.R. FOR THE REVENUE POINTED OUT THA T THE PLEA OF THE ASSESSEE BEFORE THE CIT (APPEALS) WAS THAT BECAUSE OF IGNORANCE OF LAW THE APPEALS COULD NOT BE FILED IN TIME AND FURTHER THE ASSESSEE HAD DEFAULTED IN FURNISHING THE AIR INFORMATION BEFORE THE DUE DATE BEFORE THE ASSESSING OFFICER. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE BEFORE US IS AGGRIEVED BY THE DISMISSAL OF APPEALS IN LIMINE BY THE CIT (APPEALS) AS THE APPEALS WERE FILED BELATED LY AFTER A DELAY OF 52 DAYS. THE EXPLANATION OF THE ASSESSEE IN THIS REGA RD WAS THAT IT HAD SOUGHT LEGAL OPINION OF SEVERAL COUNSELS WHICH TOOK LONG TIME RESULTING IN DELAY IN FILING THE APPEALS BEFORE THE CIT (APPE ALS). ANOTHER CONTENTION RAISED BEFORE THE CIT (APPEALS) WAS THAT THE OFFICE OF THE SUB REGISTRAR DUDHAN SADHA WAS SITUATED IN SMALL TOWN AND WAS NOT EQUIPPED WITH ADEQUATE AND TRAINED STAFF WHO WERE CONVERSANT WITH COMPLICATED LEGAL PROVISIONS AS WELL AS WERE NOT FU LLY AWARE OF THE CONSEQUENCE OF LATE FILING OF AIR RETURNS. THE PLE A OF IGNORANCE OF LAW WAS RAISED BY THE ASSESSEE BEFORE THE CIT (APPEALS) WITH REGARD TO THE LATE FILING OF AIR RETURNS. HOWEVER WITH REGARD T O THE DELAY IN FILING BEFORE THE CIT (APPEALS) THE CASE OF THE ASSESSEE WAS THAT IT HAD TO SEEK 4 LEGAL OPINION FROM DIFFERENT COUNSELS AND HENCE THE DELAY. IN THE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES WE FIND MERIT IN THE PLEA OF THE ASSESSEE VIS--VIS IN FILING THE APPEAL S LATE BY 52 DAYS AND WE CONDONE THE SAME. 10. THE CIT (APPEALS) HAD NOT DECIDED THE ISSUE ON MERITS BUT THE ISSUE RAISED BEFORE US IS IDENTICAL TO THE ISSUE RA ISED IN THE CASES OF SEVERAL SUB REGISTRARS VIS--VIS LEVY OF PENALTY UN DER SECTION 271FA OF THE ACT. IN VIEW THEREOF WE FIND NO MERIT IN REMI TTING THE ISSUE BACK TO THE FILE OF CIT (APPEALS) AND WE DECIDE THE SAME BY FOLLOWING OUR EARLIER ORDERS ON THE SAID ISSUE. 11. THE TRIBUNAL IN THE CASE OF SUB REGISTRAR DHAN D VS. DIRECTOR OF INCOME TAX (CIB) & OTHERS (SUPRA) VIDE CONSOLIDATED ORDER DATED 31.10.2013 HAD IN TURN RELIED UPON THE RATIO LAID D OWN BY THE TRIBUNAL IN ITA NOS.431 TO 434/CHD/2012 ORDER DATED 30.10.2013 AND DIRECTED THE ASSESSING OFFICER TO RECOMPUTE THE PENALTY LEVIED U NDER SECTION 271FA OF THE ACT. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER: 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND FIND TH AT THE ISSUE OF LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT AROSE BEFORE THE CHANDIGARH BENCH OF TRIBUNAL IN ITA NOS. 431 TO 434/CHD/2012 WHEREIN VIDE ORDER DATED 30.10.2013 I T HAS BEEN HELD AS UNDER : 23. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. SECTION 285BA OF THE ACT PRESCRIBED AN OBLIGATION TO FURNISH ANNUAL INFORMATION REPORT BY THE PRESCRIBED PERSON FOR THE SPECIFIED TRANSACTION WIT HIN 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 TRANSAC TION OF PURCHASE AND SALE BY ANY PERSON OF IMMOVABLE PROPERTY VALUED AT RS.30 LACS OR MORE. THE DUE DAT E FOR FILING THE SAID AIR INFORMATION IN FORM NO.61A IS 3 1 ST AUGUST IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH THE TRANSACTION WAS REGISTERED OR RECORDED. THE ON US IS UPON THE ASSESSEE TO FURNISH THE SPECIFIED INFORMAT ION UNDER SECTION 285BA OF THE ACT. 5 24. COMING TO THE PROVISIONS OF SECTION 285BA OF TH E ACT THE SUB-SECTION (1) PROVIDES THE LIST OF PERSO NS WHO ARE REQUIRED TO FURNISH THE ANNUAL INFORMATION RETU RN IN RESPECT OF FINANCIAL TRANSACTIONS WHICH ARE REGISTE RED OR RECORDED DURING THE FINANCIAL YEAR BEGINNING ON OR AFTER 1 ST DAY OF APRIL 2004. SUCH INFORMATION IS TO BE FURNISHED TO THE PRESCRIBED INCOME TAX AUTHORITY I. E. THE DIRECTOR OF INCOME TAX (CENTRAL INFORMATION BRANCH) OR THE AUTHORITY/AGENCY PRESCRIBED UNDER THE 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 T HE TRANSACTION WAS REGISTERED OR RECORDED IN FORM NO. 61A AS PRESCRIBED UNDER RULE 114E OF THE INCOME TAX RUL ES. SUB-SECTION (3) DEFINES SPECIFIED FINANCIAL TRANSAC TION WHICH MAY BE PRESCRIBED UNDER THE ACT. THE BOARD H AS GIVEN AUTHORITY TO PRESCRIBE DIFFERENT VALUES FOR DIFFERENT TRANSACTIONS IN RESPECT OF DIFFERENT PERS ONS HAVING REGARD TO THE NATURE OF SAID TRANSACTION. U NDER SUB-SECTION (4) WHERE THE PRESCRIBED INCOME TAX AUTHORITY CONSIDERS THE ANNUAL INFORMATION RETURN FURNISHED UNDER SUB-SECTION (1) TO BE DEFECTIVE TH EN SUCH DEFECTS ARE TO BE INTIMATED TO THE PRESCRIBED PERSON AND AN OPPORTUNITY IS TO BE ALLOWED FOR RECTIFYING THE SAME WITHIN THE SPECIFIED/ EXTENDED PERIOD. IN CAS E SAID DEFECTS ARE NOT REMOVED WITHIN THE PRESCRIBED OR EXTENDED PERIOD THEN SUCH RETURNS WOULD BE TREATED 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 TH E PRESCRIBED PERSON HAS NOT FURNISHED ANNUAL INFORMAT ION RETURN WITHIN THE PRESCRIBED TIME THE PRESCRIBED I NCOME TAX AUTHORITY MAY SERVE UPON SUCH PERSON NOTICE REQUIRING HIM TO FURNISH SUCH RETURN WITHIN A PERIO D NOT EXCEEDING SIXTY DAYS. 25. UNDER THE PROVISIONS OF SECTION 271FA OF THE AC T PENALTY IS IMPOSABLE IN THE EVENT OF THE PERSON RESPONSIBLE HAVING FAILED TO FURNISH THE AIR INFORM ATION UNDER SECTION 285BA OF THE ACT. SECTION 271 FA OF THE ACT READS AS UNDER: [ PENALTY FOR FAILURE TO FURNISH ANNUAL INFORMATION R ETURN. 271FA. IF A PERSON WHO IS REQUIRED TO FURNISH AN ANNUAL IN FORMATION RETURN AS REQUIRED UNDER SUB-SECTION (1) OF SECTION 285BA FAILS TO FURNISH SUCH RETURN WITHIN THE TIME PRESCRIBED UNDER THAT S UB-SECTION THE INCOME- TAX AUTHORITY PRESCRIBED UNDER THE SAID SUB-SECTION MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY A SUM OF ONE H UNDRED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES.] 26. READING THE PROVISIONS OF SECTION 285BA AND THE RELEVANT PROVISIONS OF SECTION 271FA OF THE ACT IT TRANSPIRES THAT WHERE THE PRESCRIBED PERSON IS REQU IRED TO FURNISH THE AIR AND FAILS TO FURNISH THE SAME WI THIN THE PRESCRIBED TIME THEN SUCH PERSON COULD BE HELD TO BE 6 LIABLE TO LEVY OF PENALTY EQUIVALENT TO RS.100/- FO R EVERY DAY OF DEFAULT. THE ABOVE SAID PROVISIONS WERE INS ERTED BY THE FINANCE (NO.2) ACT 2004 W.E.F. 1.4.2005. UN DER THE PROVISIONS OF SECTION 273B OF THE ACT THE PENA LTY LEVIABLE UNDER VARIOUS SECTIONS IS NOT TO BE IMPOSE D WHERE THE PERSON PROVES THAT THERE WAS REASONABLE C AUSE FOR THE SAID FAILURE/DEFAULT. THE LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT IS ALSO COVERED 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 CONDIT IONS PRESCRIBED UNDER SECTION 273B OF THE ACT. 27. WE FIND THAT THE ISSUE OF LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT AROSE BEFORE THE HON'BLE GUJARAT HIGH COURT IN PATAN NAGRIK SAHAKARI BANK LT D. VS DIT (CIB) (SUPRA) WHEREIN IT HAS BEEN OBSERVED AS UNDER: SECTION 285BA OF THE ACT IMPOSES AN OBLIGATION UPON ANY PERSON BEING AN ASSESSEE WHO IS RESPONSIBLE FOR REGISTERING OR MAINTAINING BOOKS OF ACCOUNT OR OTHER DOCUMENTS CONTAINING A RECORD OF ANY SPECIFIED FINANCIAL TRANSACTION UNDER ANY LAW FOR THE TIME BEING IN FORCE TO FURNISH AN ANNUAL INFORMATION RETURN IN RESPECT OF SUCH SPECIFIED FINANCIAL TRANSACTION WHICH 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 REQUIRED FOR THE PURPOSES OF THE ACT TO THE PRESCRIBED INCOME-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 PERSON 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-TAX AUTHORITY MAY SERVE UPON SUCH PERSON A NOTICE REQUIRING HIM TO FURNISH SUCH RETURN WITHIN A PERIOD NOT EXCEEDING SIXTY DAYS FROM THE DATE OF SERVICE OF SUCH NOTICE AND HE SHALL FURNISH THE ANNUAL INFORMATION RETURN WITHIN THE TIME SPECIFIED IN THE NOTICE. 28. THE HON'BLE COURT FURTHER HELD THAT WHERE THE PETITIONER HAD MADE OUT A REASONABLE CAUSE FOR NOT FILING THE PRESCRIBED AIR RETURN WITHIN THE PRESCRIBED PER IOD OF LIMITATION IT WOULD BE REASONABLE TO BELIEVE TH AT THE PETITIONER WAS NOT AWARE OF THE PROVISIONS OF SECTI ON 285BA OF THE ACT. THE HON'BLE COURT FURTHER OBSERV ED THAT WHERE THE PERSON HAD NOT FURNISHED THE AIR RET URN UNDER SECTION 285BA(1) OF THE ACT SUB-SECTION (5) 7 THEREOF LAYS DOWN THAT PRESCRIBED INCOME TAX AUTHOR ITY MAY SERVE UPON SUCH PERSON A NOTICE REQUIRING HIM T O FURNISH SAID RETURN WITHIN THE SPECIFIED PERIOD NOT EXCEEDING 60 DAYS FROM THE DATE OF SERVICE OF SUCH NOTICE. THE HON'BLE COURT CONCLUDED BY HOLDING THA T UPON SUCH NOTICE BEING SERVED THE PETITIONER CAN N O LONGER PLEAD THAT IT WAS UNAWARE OF THE STATUTORY PROVISIONS OR ITS OBLIGATIONS 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 COURT OBSERVED THAT HOWEVER MERELY BECAUSE THE PETITIONER HAS NOT IMMEDIATELY T AKEN STEPS AFTER THE ISSUANCE OF THE FIRST NOTICE ON DEC EMBER 17 2008 IT CANNOT BE SAID THAT THE REASONABLE CAU SE MADE OUT BY THE PETITIONER IN RESPECT OF THE PERIOD PRIOR THERETO SHOULD NOT BE TAKEN INTO CONSIDERATION WHI LE CONSIDERING THE QUANTUM OF PENALTY TO BE IMPOSED U NDER SECTION 271FA OF THE ACT. HOWEVER WITH EFFECT FROM THE DATE OF SERVICE OF THE NOTICE DATED DECEMBER 17 20 08 ISSUED UNDER SECTION 285BA(5) OF THE ACT ANY DEFAU LT ON THE PART OF THE PETITIONER WOULD BE VIEWED AS A CON SCIOUS DISREGARD OF ITS STATUTORY OBLIGATION AND AS SUCH IN RESPECT OF THE PERIOD SUBSEQUENT THERETO THE PETIT IONER WOULD NOT BE ENTITLED TO THE BENEFIT OF THE PROVISI ONS OF SECTION 273B OF THE ACT. THIS VIEW FINDS SUPPORT IN THE DECISION OF THIS COURT IN THE CASE OF CIT V. KANUBH AI MULJIBHAI PATEL [2008] 306 ITR 179 (GUJ) ON WHICH RELIANCE HAS BEEN PLACED ON BEHALF OF THE PETITIONE R. 29. THE HON'BLE SUPREME COURT IN MOTILAL PADAMPAT SUGAR MILLS CO.LTD. VS. STATE OF UTTAR PRADESH & OT HERS [118 ITR 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 TO KNOW THE LAW BU T THAT IS NOT A CORRECT STATEMENT: THERE IS NO SUCH MAXIM KNOWN TO THE LAW. WITHOUT GOING INTO THE FACTS OF THE CA SE WE ARE OF THE OPINION THAT SAME IS APPLICABLE ONLY TIL L THE TIME THE SPECIFIED PERSON WAS MADE AWARE THROUGH TH E NOTICE OF ITS OBLIGATION UNDER SECTION 285BA OF THE ACT OR HAD BECOME AWARE ON ITS OWN NOTION. HOWEVER THE SITUATION WOULD CHANGE AFTER HAVING RECEIVED THE NO TICE FOR FILING THE AIRS. THE SPECIFIED PERSON WAS 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 SPECIFI ED PERSONS BEFORE US IS THAT THE PROVISIONS OF SECTION 285BA OF THE ACT BEING NEWLY INTRODUCED WERE NOT IN THEIR KNOWLEDGE AND BECAUSE OF THE SAME THERE WAS DEFAULT IN COMPLIANCE TO THE SAID PROVISIONS. WE FIND MERIT I N THE SAID PLEA THAT IN VIEW OF THE NEWLY INTRODUCED PROV ISIONS 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 IN COME TAX AUTHORITIES. THUS WE ARE OF THE VIEW THAT NO PENALTY 8 UNDER SECTION 271FA OF THE ACT IS LEVIABLE FOR THE PERIOD UPTO THE DATE OF FIRST NOTICE BY WHICH THE SPECIFIE D PERSONS BECAME AWARE OF ITS OBLIGATIONS OR THROUGH ANY OTHER MODE AS THERE WAS REASONABLE CAUSE FOR NOT F ILING THE SAID INFORMATION IN TIME. HOWEVER THE SAID PLE A OF NON-AWARENESS OF THE PROVISIONS OF THE ACT CANNOT B E PRESSED INTO SERVICE FOR THE PERIOD AFTER THE SAID DATE. FURTHER THE PERSON CANNOT TAKE SHELTER UNDER THE P LEA THAT IN THE ABSENCE OF ANY NOTICE ISSUED IT WAS NO T AWARE OF ITS OBLIGATIONS AS THE ONUS IS UPON THE P ERSONS TO FURNISH THE INFORMATION. IN SUCH CASES THE DATE OF FIRST NOTICE OR DATE OF FURNISHING THE FIRST AIR UN DER SECTION 285BA OF THE ACT WOULD BE THE DATE OF NOTI CE. 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 RELIANC E WAS PLACED ON HINDUSTAN STEEL LIMITED VS STATE OF ORISSA 83 ITR 26 (S.C) AND C.T.RAMANATHAN AND CO. V S ITO 34 TTJ 125 (MAD). 32. ON CONSIDERATION OF THE JUDGEMENTS WE ARE OF T HE OPINION THAT FAILURE TO FILE REQUIRED PARTICULARS I N RESPECT OF TRANSACTIONS OF SALE VALUE OF RS. 30 LAC S OR ABOVE UNDER SECTION 285BA OF THE ACT CANNOT BE TERM ED MERELY BREACH OF TECHNICAL NATURE BECAUSE ON THE BA SIS OF SUCH INFORMATION THE REVENUE WOULD TAKE ACTION AGAINST SPECIFIED PERSONS I.E. PERSONS PURCHASING O R SELLING PROPERTIES IN VALUE EXCEEDING RS. 30 LACS A ND IN THE ABSENCE OF SUCH INFORMATION WHICH IS REQUIRED TO BE FILED BY SUB-REGISTRAR THE DEPARTMENT CAN LOOSE HU GE REVENUE. THEREFORE SUCH DEFAULT IS LEADING TO ENOR MOUS CONSEQUENCES WHICH CANNOT BE TERMED AS TECHNICAL. 33. SECONDLY IN ANY CASE GUJRAT HIGH COURT IN PAT AN NAGRIK SAHAKARI BANK LTD. (SUPRA)HAS CONSIDERED THE DECISION OF HINDUSTAN STEEL LTD. VS STATE OF ORISSA (SUPRA) WHILE DEALING WITH THE ISSUE OF LEVY OF PEN ALTY UNDER SECTION 271FA OF THE ACT WHICH IS IDENTICAL AND STILL HELD THE PENALTY TO BE LEVIABLE. WE FIND NO M ERIT 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 R ETURN IN RESPECT THEREOF WAS FILED IN TIME WITH THE INCOM E TAX DEPARTMENT ON MERE LATE ISSUE OF TAX DEDUCTION CERTIFICATE THERE WAS NO LOSS TO THE REVENUE AND T HE DELAY IN FURNISHING THE TAX DEDUCTION CERTIFICATE W AS MERELY TECHNICAL OR VENIAL IN NATURE AND PENALTY CO ULD NOT BE IMPOSED. THE SAID DECISION CANNOT BE APPLIED TO THE PRESENT ISSUE IN VIEW OF THE REASONS GIVEN ABOV E. 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. 9 36. THE NEXT PLEA RAISED BY THE ASSESSEE WAS THAT THERE WAS NO TAX INVOLVEMENT AND IT WOULD NOT MAKE ANY DIFFERENCE 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 NAGRIK SAHAKARI BANK LT D. VS DIT (CIB) (SUPRA) AND THE HON'BLE COURT 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 IS A STATUTORY OBLIGATION ON THE ASSESSEE TO FURNIS H 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 TRIBUNAL IN SUB REGISTRAR VS DIT (CIB) IN ITA NOS. 137 TO 140/ASR/2013 VIDE ORDER 30.05.2013 HAD APPLIED T HE 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 PENALTY IS T O BE WORKED OUT FROM THE FIRST ADVISORY LETTER ISSUED TO THE ASSESSEE. THE PLEA OF IGNORANCE OF LAW MADE BY THE ASSESSEE THEREIN WAS REJECTED IN VIEW OF RATIO LAID DOWN BY THE HON'BLE GUJRAT HIGH COURT IN PATAN NAGRIK SAHAKARI BANK LTD. VS DIT (CIB) (SUPRA). BUT THE P LEA OF REASONABLE CAUSE FROM THE DATE OF ISSUE 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 INFOR MATION IN RESPECT OF THE TRANSACTIONS RELATING TO THE SALE AND PURCHASE OF THE PROPERTY VALUED AT RS. 30 LACS OR A BOVE. THE CASE OF THE ASSESSEE IS THAT IN THE ABSENCE OF THE AWARENESS OF THE PROVISIONS OF THE ACT AND ALSO AS NO TAN NUMBER WAS AVAILABLE WITH THE ASSESSEE INFORMATION WAS FURNISHED MANUALLY WITH THE CONCERN ED OFFICERS OF THE DEPARTMENT AND WHEN THE NOTICE WAS ISSUED BY THE SAID DEPARTMENT FOR FURNISHING THE REQUISITE INFORMATION. HOWEVER THE INFORMATION WA S 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 PER USAL OF THE ORDERS PASSED BY THE DIT (CIB) IN ITA NOS. 4 31 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 10 THE ORDER IMPOSING PENALTY UNDER SECTION 271FA OF T HE ACT. THE DIT (CIB) THEREAFTER HAD ACCEPTED THE DA TE OF FURNISHING OF MANUAL INFORMATION AS DATE OF COMPLIA NCE TO THE PROVISIONS OF SECTION 285BA OF THE ACT AND H AD COMPUTED THE PENALTY LEVIABLE UNDER SECTION 271BA O F THE ACT UPTO SUCH DATE I.E. IN THE CASE OF FINANCIA L YEAR 2005-06 THE PERIOD OF PENALTY WAS DETERMINED 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 VIEW OF THE PROVISIONS OF SECTION 285BA O F THE ACT AS PER WHICH THE ASSESSEE CAN FILE THE RETURN E ITHER WITH THE PRESCRIBED AUTHORITY OR WITH THE AUTHORIZE D AGENCY OF THE PRESCRIBED AUTHORITY. HOWEVER UNDER THE PROVISO TO RULE 114E(3) OF THE IT RULES IT IS CLAR IFIED THAT THE AIR IS TO BE FILED WITH THE AUTHORIZED AGE NCY 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 AND THE PERSON COULD BE HELD TO H AVE A REASONABLE CAUSE IN NOT FURNISHING THE INFORMATION THROUGH NSDL AND NO PENALTY UNDER SECTION 271FA OF THE ACT IS LEVIABLE FOR THE PERIOD OF DEFAULT BETWEEN T HE 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 PRESCRIBED AUTHORITY WHICH IN-TURN WAS FURNISHED TO THE AUTHO RIZED AGENCY ON A LATER DATE. THE CASE OF REASONABLE CAU SE ON THIS ACCOUNT AND THE BENEFIT OF NON-LEVY OF PENALTY UNDER SECTION 271BA OF THE ACT ON THIS ISSUE IS BEING ACC EPTED IN THE PRESENT YEARS WHICH ARE THE INITIAL YEARS WH EN THE PROVISIONS OF SECTION 285BA OF THE ACT WERE INTRODU CED AND THERE WAS NON-AWARENESS ABOUT THE SAID PROVISIO NS OF THE ACT. HOWEVER THE SAID PLEA WOULD NOT BE AVAILABLE TO THE ASSESSEE IN LATER YEARS AS COMPLET E AWARENESS ABOUT THE PROVISIONS OF THE ACT AND THE COMPLIANCE THROUGH THE AUTHORIZED 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 DIFFER ENT OFFICERS FOR THE RESPECTIVE YEARS IN COMPLIANCE TO THE NOTICES ISSUED UNDER SECTION 133(6) OF THE ACT. REL IANCE WAS PLACED ON THE INFORMATION FURNISHED AS PER THE REPLY PLACED AT PAGE 7 OF THE PAPER BOOK. IT MAY BE BROU GHT ON RECORD THAT THE SAID INFORMATION HAS BEEN FURNIS HED BY THE ASSESSEE IN RESPONSE TO THE INFORMATION SOUG HT UNDER SECTION 133(6) OF THE ACT IN RELATION TO THE TRANSACTIONS BETWEEN RS. 5 LACS TO RS. 30 LACS WHI CH IS NOT THE INFORMATION SOUGHT FOR UNDER SECTION 285BA OF THE ACT. HENCE NO RELIANCE CAN BE PLACED ON SUCH REPLIES FILED BY THE ASSESSEE FROM TIME TO TIME AND THE SAME HAVE TO BE IGNORED. SIMILAR PLEA WAS MADE BY THE 11 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 RS. 30 LACS WHEREAS UNDER SECTION 285BA OF THE ACT THE INFORMATION IS TO BE FURNISHED IN RESPECT OF TH E PROPERTIES SOLD HAVING SALE VALUE OF RS. 30 LACS OR MORE. THE SAID PLEAS RAISED BY THE ASSESSEE ARE THUS REJ ECTED. 41. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AND IN VIEW OF OUR OBSERVATIONS IN THE PARAS HEREIN ABO VE IN-TURN FOLLOWING THE RATIO LAID DOWN BY THE HON'BL E GUJRAT HIGH COURT IN PATAN NAGRIK SAHAKARI BANK LTD . VS DIT (CIB) (SUPRA) WE DIRECT THE ASSESSING OFFIC ER TO RECOMPUTE THE PENALTY LEVIABLE UNDER SECTION 271BA OF THE ACT AND THE PERIOD OF PENALTY IN FURNISHING THE INFORMATION WOULD BE COMPUTED ON THE BASIS OF FOLLO WING DIRECTIONS : 1. NO PENALTY TO BE LEVIED TILL THE FIRST NOTICE ISSUED 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 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 AIRS 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 LEVIABLE FOR THE DEFAULT THEREAFTER. 43. HOWEVER IN CASES WHERE THE ANNUAL INFORMATION REPORTS HAVE BEEN FILED BY THE SPECIFIED PERSONS BE YOND THE ABOVESAID PERIOD OF LIMITATION THE SPECIFIED P ERSON WOULD BE HELD TO BE IN DEFAULT MAKING IT ELIGIBLE TO LEVY OF PENALTY UNDER SECTION 271FA OF THE ACT. THE DIT (CIB) IS DIRECTED TO RECOMPUTE THE SAID LEVY OF PEN ALTY UNDER SECTION 271FA OF THE ACT IN LINE WITH OUR 12 DIRECTIONS. HOWEVER REASONABLE OPPORTUNITY OF HEA RING SHOULD BE AFFORDED IN THIS REGARD AND THE SPECIFIED PERSON SHALL FURNISH COMPLETE INFORMATION BEFORE HI S DIT (CIB) WITH REGARD TO ITS SEVERAL CLAIMS IN ORDER TO FINALLY DETERMINE THE PERIOD OF DEFAULT AND THE QUA NTUM OF PENALTY LEVIABLE UNDER SECTION 271FA 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. 12. FOLLOWING OUR DIRECTIONS IN THE EARLIER YEARS W E REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO RECOMP UTE THE QUANTUM OF PENALTY LEVIABLE UNDER SECTION 271FA OF THE ACT IN LINE WITH OUR OBSERVATIONS IN THE ABOVE ORDERS AFTER AFFORDING RE ASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ALL THE APPEALS ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 13. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE IN ITA NOS.87 TO 91/CHD/2014 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF APRIL 2014. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16 TH APRIL 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR ITAT CHANDIGARH 13