9911796707
TMI Blog2015 (2) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... hority as well before us. Assessee has also failed to establish any bonafide in not filing the AIR within time, inspite of the fact that assessee is holding a very responsible post and discharging very important duties which directly affect the exchequer of the country. Since the AIR to be filed by the assessee is very much essential for further cause of action on the same for which the assessee has failed to submit within time. Therefore, the penalty in dispute has rightly be levied by the Revenue Authorities, hence, we uphold the penalty in dispute by dismissing all the Appeals filed by the Assessee. - Decided against assessee. - I.T.A. Nos.5733, 5734, 5735, 5736 & 5737/DEL/2012 - - - Dated:- 9-2-2015 - Shri H. S. Sidhu And Shri J. S. Reddy,JJ. For the Petitioner : Sh. Naveen Kumar Goyal, Adv. For the Respondent : Sh. BRR Kumar, Sr. DR ORDER Per Bench These appeals by the Assessee are directed against the common order of the Ld. Commissioner of Income Tax (Appeals)- Rohtak dated 22.8.2012 pertaining to Financial Years 2004-05 to 2008-09. Since the issue involved in these appeals is common, we are therefore, proceeding to dispose them off by this cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Depositories (NSDL) as the agency authorised to receive AlRs on the behalf of the Commissioner of Income Tax (Central Information Branch). The filer can also furnish the AIR with the Facilitation Centres of NSDL:located in different parts of the country. Item NO. 6 of the Table in Rule 114E specifies that the Registrar or Sub-registrar appointed u/s 6 of the Registration Act, 1908 is required to file AIR in respect of transactions of purchase or sale by any person of immovable property valued at thirty Iakh rupees or more. The due date for filing the AIR is the 31st August immediately following the financial year in which the transaction is registered or recorded. In the event of failure to furnish the AIR, penalty of ₹ 100/- per day for every day is leviable u/s 271FA. As per the record the assessee has filed the Annual Information Return (AIR) late, in respect of the purchase and sale by any person of immovable property value at ₹ 30 lacs or more. 2.2 The Director of Income Tax (CIB), Chandigarh issued show cause notice on 6.9.2010 asking the assessee to show cause as to why penalty notice u/s. 271FA should not be imposed upon the assessee for failure to furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ldar. He requested that in view of these documentary evidences as well as the order dated 15.2.2003 passed by the ITAT, Delhi H Bench, New Delhi in ITA Nos. 5701 to 5704/Del/2012 Financial Years 2005-06 to 2008-09 vide order dated 15.2.2013 in the case of The Mahendergarh Central Co-op Bank Ltd. vs. DIT(CIB), the penalty in dispute may be cancelled by accepting the appeal filed by the assessee. 6. Ld. DR relied upon the order passed by the Ld. CIT(A) and the provisions of law applicable to the case of the assessee. He further stated that the assessee remained non-cooperative before the AO as well as before the Ld. CIT(A), therefore, assessee is not entitled for any lenient view from this Bench. He requested that assessee has no reasonable cause for deleting the penalty in dispute, therefore, the appeal filed by the assesee may be dismissed. 7. We have heard both the parties and have gone through the relevant record available with the special order passed by the Revenue Authorities alongwith the Paper Book Pages 1 to 13 filed by the assessee in which the assessee has attached the written submissions as well as the relevant provisions of law applicable to the present case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inues. 7.3 In view the requirement of law as mentioned above as well as non-fulfillment of the same and in view of the details given above, assessee has filed its return for the financial year 2004-05 i.e. delay 1525 delays; FY 2005-06 i.e. delay 1251 days; FY 2006-07 i.e. delay 886 days; FY 2007-08 i.e. delay 817 days and FY 2008-09 i.e delay 156 days. 7.4 Keeping in view of the aforesaid delay for filing the AIR, the AO issued show cause notice to the assessee on 6.9.2010 asking the assessee to show cause as to why the penalty u/s. 271FA of the Act should not be imposed upon it for failure the AIR in time and the reply was sought by 27.9.2010. In response to the same, nobody appeared nor any adjournment application is filed. The Authroity again issued notice dated 14.10.2010 and adjourned the hearing for 22.11.2010 for the same purposes. On 22.11.2010 Sh. Ravi, Clerk from the office of the assessee i.e. Sub Registrar filed an application for adjournment and the hearing was adjourned for 29.11.2010. On 29.11.2010 Sub Registrar, Bhiwani appeared and again filed the reply dated 14.10.2010 which the AO has reproduced in the assessment order at Pages 3-4 vide para 5.3. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not ordinarily be imposed because it is law full to do so. The levy of penalty for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on consideration of all the relevant circumstances. Even if minimum penalty is prescribed the authority competent to impose the penalty will be justified in refusing to impose penalty when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bonafide belief that the offender is not liable to act in the manner prescribed by the statute. The legal Position explained in the above authority is that where there has been a defiance of statutory obligation which a person is obliged to perform the authority competent to levy the penalty will be justified in refusing to impose the penalty if the person obliged to perform statutory obligation and had not breached the legal obligation deliberately or in conscious disregard of its obligations in this regard, is fully applicable in facts of the present as explained above. The non compliance of the legal obligation has not caused any wrong full gain to this office and the office of would have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This contention of the Filer is not acceptable as notices were issued by this office for different financial years on 30.11.2006, 11.05.2007, 10.07.2008, 17.04.2009, 13.08.2009, 20.11.2009 on 27.07.2010 etc., which remained un-complied with. The Filer cannot claim any ignorance as it was made aware .of the LT. provisions regarding filing of AIRs by issuance of notices from time to time. 6) Frequent transfers of Sub- Registrars/Registrars is also not relevant factor because this office is not fixing any responsibility on the individual incumbents who occupied office at the relevant point of time but is rather issuing the notice to the office of Sub-Registrar for the delay involved in filing of AIR for various financial years. No fixing of responsibility on individuals is required to be done by this office. In any case this is purely internal administrative matter between the Filer and the State Govt. Further, if the work of registration of properties etc. has gone on unhindered despite frequent transfers of officers and staff; there is no reason why AIR was not filed on time. 7) The reliance placed by the Filer on the decision of the Hon'ble Supreme Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, even after the ITO issued notice under s. 285BA(5) on 17th Dec. 2008, the petitioner did not comply with the requirements of s. 285BAIt was only when a second notice was issued on 11th Sept., 2009, that the petitioner filed the annual information return- Thus, even if it is assumed that the petitioner was initially not aware of its statutory obligation under s. 285BA, it is not open to the petitioner to take such defence once the Department had issued notice under s. 285BA(5) on 17th Dec., 2008-It cannot be said that the petitioner had any reasonable cause for not filing the annual information return within the period of sixty days of service of the first notice- Fact, that such annual information return came to be furnished within a month from the issuance of the second notice falsifies the case of the petitioner that there were substantial number of transactions and that it took some time to father the information- Thus, petitioner was not entitled to entertain any bona fide belief or to plead ignorance of the provisions of s. 285BA from the date of service of first notice under s. 285BA(5)-Default on the part of the petitioner has to be viewed as a conscious disregard of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed under that sub-section, the income tax authority prescribed under the sub-section may direct that such person shall pay, by way of penalty, a sum of one hundred rupees for every day during the failure continues. 7.8 Keeping in view of the facts and circumstance of the present case and the provisions of law reproduced as above, we are of the view that the main contention of the assessee is that the assessee was ignorant of law i.e. about the provisions of section 285BA of the I.T. Act. We are of the view that the provisions of section 285BA of the Act was introduced by the Finance (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) Act, 2004. Prior to its substitution, section 285BA was inserted where any person who enters into any financial transaction, as may be prescribed, with any other person, shall furnish, within the prescribed time, an annual information return in such form and manner, as may be prescribed in respect of such financial transactions entered into by him during any previous year. Rule 114A to 114E prescribes such return to be furnished in Form no. 61A and shall be verified in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
