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TMI Blog2015 (8) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... to be furnished in Form No.61A and shall be verified in the manner indicated therein. At item No.6 of the said Rule, return shall be furnished on or before 31st August, immediately following the financial year in which the transaction is registered or recorded Penalty order dated 22.12.2010 has been served 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 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 mentioned wrong District is part of the paper book cannot prove that the notice dated 20.11.2006 and other six notices as mentioned hereinabove have not been issued and served on the assessee. Therefore, the argument of the ld. counsel for the assesse is rejected that no notice u/s 285BA(5) has been issued/served upon the assessee even in remand proceedings when all notices were confronted. Therefore, the reliance placed by the ld. counsel for the assessee on the decisions of various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within time and that the case of the assessee is covered by the provisions of section 273B. 3. That the Ld. CIT(A) erred in facts and law in upholding the penalty u/s 271FA while following the judgment of Hon'ble Gujarat High Court in the case of Patan Nagrik Sahakari Bank Ltd. vs. Directors of Income Tax. The case law applied b the worthy CIT(A) is distinguishable on facts as no notice as provided u/s 285BA(5) was issued/served on the assessee. 4. That the Ld. CIT(A) erred in facts and law in upholding the penalty u/s 271FA while giving the finding that the advisory letter issued by the department must have been delivered by the postal authority to the assessee. The finding of the Ld. CIT(A) is based on presumptions. The department has failed to prove that the advisory letter was issued/served. Or any other ground which may be taken at the time of hearing of appeal." 3. The facts in the present appeals are identical to all the appeals in this order with respect to levy of penalty under section 271FA of the Income Tax Act, 1961 and therefore, all the appeals mentioned hereinabove are decided by this consolidated order. 4. The Ld. counsel for the assessee, Mr. P.N.Arora, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays) 1. 2004-05 30.11.2005 24.11.2010 1819 days 2. 2005-06 31.08.2006 24.11.2010 1545 days 3. 2006-07 31.08.2008 24.11.2010 1180 days 4. 2007-08 31.08.2008 25.11.2010 816 days 5. 2008-09 31.08.2009 24.11.2010 450 days In this regard show cause notice was issued by this office on 14.09.2010 asking the Filer to show cause as to why penalty u/s 271 FA of the Act should not be imposed upon it for failure to furnish the AIR in time, and the reply was sought by 28.10.2010. However, another show cause notice fixing the same date of hearing i.e. 28.10.2010 was issued by this office vide this office letter No. DIT/CIB/Chd/2010-11/4963 dated 15.10.2010. In response to the above penalty show cause notices Shri Sanddeep Kumar R.C. from office of the Filer appeared and requested for adjournment, which was allowed for 24.11.2010. On 24.11.2010 neither anybody attended nor any written request for adjournment etc. was received till the closing hours of the day. However, on 25.11.2010 the Filer made a request over telephone to adjourn the case for some other suitable date. Accordingly, the hearing in the case was adjourned for 10.12.2010. On 10.12.2010 again the Filer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys ₹ 45,000/- Total 3991 ₹ 3,99,100/- Accordingly, penalty of ₹ 3,99,100/-(3991x100) is imposed. Issue demand notice and challans to the Filer accordingly." 7. Before the Ld. CIT(A), the ld. counsel for the assessee requested to confront the notices issued by the DIT (CIB) Chandigarh and accordingly ld. CIT(A) requested the DIT(CIB), Chandigarh to send the relevant record. The DIT(CIV) has sent the remand report dated 19.11.2012 through I.T.O. (Hqrs), Chandigarh alongwith necessary records which was confronted to the ld. counsel for the assessee. 8. The Ld. counsel for the assessee submitted that his arguments are reproduced at pages 3 to 5 of CIT(A)'s order. Thereafter, the ld. CIT(A) after considering the written submissions of the ld. counsel for the assessee passed the order, which for the sake of clarity is reproduced as under: "I have carefully gone through the penalty order and written submissions of the A/R of the appellant and I find that; 1.In the facts of the present case, it is an undisputed position that in view of the provisions of Section 285BA of the Act, the appellant was required to file the AIR for the relevant financial year on or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of s. 285BA which were brought on the statute book in the present from w.e.f. 1stApril, 2005- However, even after the ITO issued notice under s. 285BA(5) on 17th Dec., 2008, the petitioner did not comply with the requirements of s. 285BA- it 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 substantial number of transactions and that it took some time to gather 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 not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 ITR 163 (P&H) 11. The Ld. counsel for the assessee also relied upon the decision of Hon'ble Gujarat High Court in the case of Patan Nagrik Sahakari Bank Ltd. vs. Director of Income Tax reported in (2011) 338 ITR 167 where it has been held that the petitioner did not comply with the requirements of section 285BA. It was only when a second notice was issued on 11th Sept., 2009 that the petitioner filed the annual information return and even if it is assumed that the petitioner was initially not aware of its statutory obligation under section 285BA, it is not open to the petitioner to take such defence once the department had issued notice under section 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. Accordingly, the Hon'ble Court held that the petitioner was not entitled to entertain any bona fide belief or to plead ignorance of the provisiosn of section 285BA from the date of service of first notice u/s 285BA(5). A default on the part of the petitioner has to be viewed as a conscious disregard of its statutory obligation and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee. Mr. R.L. Chhanalia, Ld. DR further argued that ignorance of law is not excuse which is a settled law. Moreover, there is no mandate to issue/serve any notice with regard to any amendment or introduction of any provision or law in the statute book to inform each and every assessee of the country. Even if the DIT(CIB) has issued notices time and gain which have not been complied with is a deliberate defiance of the law consciously taken by the assessee. No bonafide belief has been shown by the assessee and therefore, no reasonable cause has been proved by the assessee and therefore, the assessee is not covered under section 273B of the Act. 15. We have heard the rival contentions and perused the facts of the case. In the present case, the main argument of the 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 assessee and when the notice was served, the assessee filed the annual information return (In short 'AIR') and no penalty should be accordingly levied upon the assessee. In this regard, we are of the view on perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. It is contrary 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 to interpret law, cannot legislate it. Our views find supports from the judgment of Hon'ble Supreme Court in the case of Union of India And Others vs. Dharmendra Textiles Processors And Others reported in (2008) 306 ITR 277. In the present case, issuance and service of notice under section 285BA(5) is not obligatory on the Income Tax Authority. Therefore, arguments made by the Ld. counsel for the assessee, Mr. P.N.Arora, are rejected to this extent. 15.2. As regards the notice dated 20.11.2006 issued by CIT (CIB), Chandigarh to the assessee, it is surprising that how the said notice has been in the possession of the assessee. Nothing has been brought on record by the ld. counsel for the assessee in this respect. Reasonable presumption is made that this notice has 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. DR and also record of DIT(CIB) which has been verified by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned hereinabove. It is settled law that ignorance of law is of no excuse, as decided by the Hon'ble Supreme Court 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 grounds raised by the assessee in ITA Nos. 137 to 140(Asr)/2013 are dismissed. 16. Now, we take up the appeal of the assessee in ITA Nos. 138 to 140(Asr)/2013 in the case of Sub Registrar, Bariwala for the assessment years 2007-08 to 2009-10. Since the facts in the present case are identical to the facts in assessee's case for the assessment year 2006-07 in ITA No.137(Asr)/2013 and therefore, our decision in IT ANo.137(Asr)/2013 is identically applicable in the present three appeals and accordingly order of the ld. CIT(A) is 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. 17. Now, we take up appeals of the assessee - Sub Registrar, Muktsar in ITA Nos. 130 to 134(Asr)/2013 for the assessment years 2005-06 to 2009-10. In this case, the details of due date of filing of annual inform ..... X X X X Extracts X X X X X X X X Extracts X X X X
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