TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 803
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....at 2006-07 to 2009-10 do- 31.01.2013 24 to 28 233 to 237(Asr)/2013 Sub Registrar, Lambi 2005-06 to 2009-10 -do- -do- 29 to 32 238 to 241(Asr)/2013 Sub Registrar, Malout 2006-07 to 2009-10 -do- 31.01.2013 33 to 37 242 to 246(Asr)2013 Sub Registrar, Talwandi 2005-06 to 2009-10 -do- -do- 38 & 39 247 & 248(Asr)/2013 Sub Registrar, Rampura Phul 2005-06 & 2006-07 -do- -do- 2. In all the cases, different assessees have taken identical grounds of appeal. The grounds raised in ITA No.137(Asr)2013, which are identical in all other appeals are reproduced hereunder: "1. That the Ld. CIT(A) Bathinda erred on facts and law in upholding the penalty u/s 271FA. 2. That the Ld. CIT(A) erred in facts and law in upholding the penalty u/s 271FA while rejecting the explanation filed by the assessee during the course of appellate proceedings that the assessee had a reasonable cause for failure to file AIR 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....
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....in which the transaction is registered or recorded. In the event if failure to furnish the AIR, penalty is leviable u/s 271FA which is reproduced as under:- "If a person who is required to furnish an Annual Information Return, as required under sub-section (1) of Section 285BA, fails to furnish such return within the time prescribed under that sub-section, the income tax authority prescribed under that sub-section may direct that such person shall pay, by way of penalty, a sum of one hundred rupees for every day during which the failure continues." As per the records of this office, the Filer has filed the Annual Information Returns (AIRs) late, in respect of purchase and sale by any person of immovable property valued at thirty lakh rupees or more for the Financial Years 2004-05, 2005-06, 2006-07, 2007-08 & 2008-09 as per details given below:- Sl. No. Financial year Due date for filing AIR Filed on Delay(in days) 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 ....
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.... the Filer a habitual defaulter without any concern/respect for the law of the land. In these circumstances it becomes imperative that suitable penalty as per law is levied on the Filer. The perusal of record shows that though the information in the financial year 2004-05 was NIL, yet the Filer has filed its AIR with NSDL. Hence, taking a lenient view, penalty is not levied for the financial years 2004-05. In view of these facts and circumstances the Filer is held liable for penalty u/s 271FA of the Act, 1961 @ Rs. 100/- per day for default for the financial years under consideration, which is calculated as under: Financial Period of default No. of days of Default Amount of penalty 2005-06 1.9.2006 to 24.11.2010 1545 days Rs. 1,54,500/- 2006-07 1.9.2007 to 24.11.2010 1180 days Rs. 1,18,800/- 2007-08 1.9.2008 to 25.11.2010 816 days Rs. 81,600/- 2008-09 1.9.2009 to 24.11.2010 450 days Rs. 45,000/- Total 3991 Rs. 3,99,100/- Accordingly, penalty of Rs. 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 ....
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.... 20.011.2006 and any default on the part of the appellant after this date would be viewed as a conscious disregard of its statutory obligation and as such, in respect of the period subsequent thereto, the appellant would not be entitled to the benefit of section 273B of the Act. This view finds support from the judgment of Hon'ble Gujarat High Court in the case of Patan Nagrik Sahakari Bank Ltd. Vs. Director of Income Tax (2011) 53 DTR (Guj.) 321 in which it has been held as under; " Penalty under s. 271FA - Delay in filing annual information return- Reasonable cause- Petitioner, a co-operative bank situated in a mofussil area, was exempt from income-tax under the provisions of s. 80P(2)(a)(i) upto asst. yr. 2006-07 and was not having the assistance of chartered accountants - In view of the said explanation of the petitioner it would be reasonable to belief that the petitioner was not aware of the 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 w....
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.... 10. The Ld. counsel for the assesse, Mr. Arora, Advocate argued that Bariwala is not in Bathinda and this is the wrong mention of the address and therefore, this notice has not been served upon the assessee. Accordingly, he relied upon the decisions of various courts of law where the notice is not served on the assessee, then no view against the assessee can be taken for levy of penalty. He relied upon the decisions of various courts of law as under: i) Patan Nagrik Sahakari Bank Ltd. vs. DIT(CIB) (2011) 338 ITR 167 (Guj.) ii) CIT vs. Sunil Kumar Chhabra (2012) 250 CTR (P&H) 195 iii) Income Tax Officer vs. Sh.Sanjeev Kumar Prop. M/s. Bhulla Mal Parshotam Lal in ITA no.358(Ssr)/2006 relating to A.Y. 2001-02 dated 9th Jan, 2007 iv) Shri Raman Gupta Prop. M/s. Raman & Co. Jammu vs. Addl CIT Range-2, Jammu in ITA no.05(Asr)/2010 for the assessment year 2003-04 dated 31/01/2011 v) CIT vs. Sunil Kumar Goel (2009) 315 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 petition....
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....ere is any bona fide belief or there is an reasonable cause for non service of the notice u/s 285BA(5) of the Act. Once the the assessee in all the cases having been served assessment order and the CIT(A)'s order, the ld. counsel cannot plead that no notice has been served on him. It was argued that the notice dated 20.11.2006 at PB-4 is available with the assessee which means that it has been served on the assessee. The Ld. counsel for the assessee has not shown with respect to the other notices whether they have been served upon him and nothing has been brought on record with reference to notices dated 04.04.2007, 11.01.2008, 12.12.2008, 21.05.2009, 20.01.2010 & 12.03.2010 whether they were not served upon the assessee. In the remand report also, DIT(CIB) has confirmed having issued notice in the remand report dated 19.11.2012 and necessary records were called for by the ld. CIT(A) which were confronted to the Ld. Counsel for 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 bo....
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....ssessee has taken the shelter of section 285BA(5) of the Act, which is reproduced hereinabove 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 together after insertion of the section by the Finance (No.2) Act, 2003 w.e.f. 1.4.2004 initially and thereafter by Finance (No.2) Act, 2004 w.e.f. 1.4.2005 mentioned hereinabove. Whereas this is not a case, the words used by the statute in section 285BA(5) gives 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 construction cannot make up the deficiencies in the 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 legisl....
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....ri Bank Ltd. vs. Director of Income Tax (supra), the ld. CIT(A) has taken full cognizance of the said decision and has directed the CIT(CIB) to recompute the default w.e.f. 01.12.2006 instead of 31.08.2006 for the assessment year 2006-07 and thereafter in the following years has rightly confirmed 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 mentioned hereinabove, the Ld. CIT(A) has taken cognizance in the case of Patan Nagrik Sahakari Bank Ltd. vs. Director of Income Tax (supra), decided by the Hon'ble Gujarat High Court. But at the same time, we may refer that ignorance of law is not an excuse, as per our findings hereinabove and also as per decision of the Hon'ble Gujrat High Court in the case of Pattan Nagrik Sahakari Bank Ltd. (supraand the Sub Registrar cannot be an exception to the law laid down by the Hon'ble Supreme Court mentioned 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 ....