TaxTMI 
TaxTMI 
2007 (10) TMI 547
X X X X Extracts X X X X
X X X X Extracts X X X X
....this case and as have been revealed from the records are that the assessee is engaged in the business of banking and, therefore, as per the Revenue it was under obligation to comply with the provisions of section 139A of the Act read with rules 114B to 114D of the Income-tax Rules, 1962 ; meaning thereby that the assessee was to get either the Permanent Account Numbers (PANs) of the depositors or Form No. 60 duly filled in by the depositors specified in section 139A of the Act and rules 114B to 114D of the Income-tax Rules. For the purpose of checking the compliance by the assessee to these provisions, survey under section 133A of the Act was carried on and during the survey operation, it was found that though the assessee had obtained Form No. 60 from the depositors/customers who did not have PANs, but in some cases either Form No. 60 was not completely filled in or supporting evidences with respect to addresses of the depositors were not available. The Assessing Officer, for the assessee's failure to obtain completely filled in Form No. 60 and/or supporting evidence with respect to addresses of the depositors initiated penalty proceedings under section 272B of the Act and for tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the documentary proof of address etc. which were enclosed with Form 60 were not found by the survey party. These were duly submitted before the Assessing Officer in course of the penalty proceedings. This assertion of the authorised representative is factually incorrect. An examination of the records available with the Assessing Officer and the detailed discussions with him, have revealed that in course of the survey three annexures were prepared, annexure A which listed 236 accounts annexure B which listed 370 accounts and annexure C which listed 468 accounts, totalling 1074 accounts where defaults were detected. After the survey, and in course of the penalty proceedings, the authorised representative of the Assessee Shri C. P. Jaria, C.A. appeared before the Assessing Officer from time to time. The relevant notings on the order-sheet of the assessment folder are reproduced hereunder : '22/8/06 Shri C. P. Jaria, C. A. attended. Submitted copy of letter dated March 27, 2006. Copy of Form No. 60 and application form obtained during the course of survey verified, defect, discrepancy shown to Shri C. P. Jaria, adjournment for further verification. Hearing fixed on August 26....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on which penalty was levied. Therefore, the authorised representative's contention that there was no violation of section 139A read with rules 114B and 114C. Even though the assessee may have produced before the Assessing Officer all accompanying documents including the proof of address yet, after detailed discussions between the Assessing Officer and the authorised representative, a final list of 793 accounts were drawn where such violations were noticed. Copies of the account opening forms with accompanying documents were provided to the Assessing Officer by the authorised representative. This meant that the authorised representative who represented the assessee in penalty proceedings, had actually agreed to and accepted that these 793 accounts had violated the said provisions. 7.2 The authorised representative has placed reliance on the decision of the Rajasthan High Court in the case of Parswanath Granite Industries (P) Ltd. [2003] 128 Taxman 768 and in Gaurav Steel Ltd. In these cases, a truck driver had failed to show the relevant bill and other documents which were accompanying the goods that the truck was carrying. At the time of checking these documents were recov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enhancement carried on by the learned Commissioner of Income-tax (Appeals) should be deleted. 7. Coming to merits of the appeal, learned counsel for the assessee, first of all, submitted that the Assessing Officer had not provided the copy of annexure B which has been taken into by the authority while imposing penalty. According to him, so far FDR's were concerned, the FDR in each case was not more than Rs. 50,000 and, therefore, the assessee was not required to procure PAN or Form No. 60 in all the cases, but in the absence of annexure B, the assessee was prevented from defending itself. Learned counsel for the assessee, further, submitted that out of 793 accounts, 446 accounts were the current accounts out of which 209 accounts were opened prior to June 1, 2002. He, therefore, submitted that there was no question of imposing penalty with respect to 446 cases and if at all the penalty was to be levied, it could be levied only with respect to 237 accounts (446 209). 8. It was, further, submitted that so far as rest of 347 accounts were concerned, the assessee had obtained Form No. 60 and if some of the forms were not complete or supporting evidence was not available, then it ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e rival submissions and the facts and circumstances and we are of the opinion that to decide the issue in hand, it is desirable to consider the provisions of section 272B of the Act, sections 139A(5) and 139A(6) as well as rules 114B(d), 114B(f), 114C(2)(i) and 114D of the Income-tax Rules, 1962, which are in following terms : "Section 139A(5) and 139A(6) (5) Every person shall- (a) quote such number in all his returns to, or correspondence with, any income-tax authority ; (b) quote such number in all challans for the payment of any sum due under this Act ; (c) quote such number in all documents pertaining to such transactions as may be prescribed by the Board in the interests of the revenue, and entered into by him : Provided that the Board may prescribe different dates for different transactions or class of transactions or for different class of persons : Provided further that a person shall quote General Index Register Number till such time Permanent Account Number is allotted to such person ; (d) intimate the Assessing Officer any change in his address or in the name and nature of his business on the basis ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tering authority referred to in clause (b) of rule 114B ; (c) Any manager or officer of a banking company referred to in clause (c) or clause (i) or clause (j) of rule 114B. 114D. Time and manner in which persons referred to in sub-rule (2) of rule 114C shall intimate the details of transaction to the Director of Income-tax (Investigation).- (1) Every person referred to in sub-rule (2) of rule 114C shall forward to the concerned Director of Income-tax (Investigation) or Commissioner of Income-tax (Central Information Branch), the following documents, namely :- (a) A statement indicating therein details of all documents pertaining to any transaction referred to in clauses (a) to (k) of rule 114B where payment is made in cash ; (b) The statement referred to in clause (a) shall contain,- (i) Name and address of the person entering into the transactions ; (ii) Nature and date of the transaction ; (iii) Amount of each transaction ; (iv) Permanent account number or General Index Register Number quoted in the documents pertaining to any transaction. (c) copies of declaration in Form No. 60 referred t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o ensure that Form No. 60 filed by the customer is duly filled in or not. 14. Similarly, none of the provisions of sub-section (5) or (6) of section 139A cast such an obligation on the bank manager or the bank. 15. In a nutshell, the cumulative analysis of section 139A and rules 114B to 114D to show that the obligation to quote PAN or GIR Number or to file Form No. 60 is that of the customer and not that of the bank. 16. Coming to the provisions of section 272B of the Act, we are of the opinion that sub-section (1) speaks of levy of penalty on a person who has failed to comply with the provisions of section 139A ; meaning thereby that, so far as the present case is concerned, the bank could be penalised. We have already observed, the obligation of the bank under sub-section (6) of section 139A is only to ensure that the PAN or GIR Number has been duly quoted in the documents furnished by a person in relation to a transaction prescribed under clause (c) of sub-section (5) of section 139A of the Act which in turn leads us to the rules 114B to 114D of the Income-tax Rules (as mentioned above) and so far as rules 114B to 114D and Form No. 60 are concerned, we have already obse....