No penalty for failure to furnish AIR Information in Time :ITAT

By | September 1, 2016

Held

It is an acknowledged and judicially recognized fact that the tax laws of this country are complex and complicated and often require for compliance, therewith the assistance of tax practitioners specialising in this field, is a well known fact, and it is equally well known fact that the legislation in this field undergoes so frequent changes and amendments that it is not possible for even a person specialising in this field, including the tax administrator, to claim that he knows what exactly the law is on a particular given day or period without making references to the history of the enactments. In these circumstances, no mala fides can be attributed to the assessee so as to invoke the penalty proceedings under section 271FA of the Act and the learned Director of Income Tax (Intelligence and Criminal investigation) should have taken note that the breach is only technical or venial breach of the provisions of the Act and such a breach could have flown from a bonafide ignorance of the assessee that he is liable to act in the manner prescribed by the statute, and should not have invoked the penalty proceedings. We find every force in the argument of the learned AR and hold that the Penalty proceedings are liable to be set aside. We order accordingly, Both the appeals of the assessee are allowed.

IN THE ITAT KOLKATA BENCH ‘A’

Malda District Central Co-op Bank Ltd.

v.

Director of Income-tax (I & CI), Kolkata

M. BALAGANESH, ACCOUNTANT MEMBER
AND K. NARASIMHA CHARY, JUDICIAL MEMBER

IT APPEAL NOS. 956 & 957 (KOL.) OF 2013
[ASSESSMENT YEARS 2011-12 & 2012-13]

AUGUST  3, 2016

Subash Agarwal, Advocate for the Appellant. Sallong Yaden, Addl. CIT for the Respondent.

ORDER

K. Narasimha Chary, Judicial Member – Both these appeals by assessee are arising out of separate penalty orders of DIT(I&CI), Kolkata passed u/s. 271FA of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) vide Nos. DIT(I&CI)/Kol/271FA/2010-11/MDCCBL/2012-13 and DIT(I&CI)/Kol/271FA/2011-12/MDCCBL/2012-13 dated 19.03.2013. Since grounds are common and facts are identical, we dispose of both these appeals by this common order for the sake of convenience. Since grounds are common and facts are identical, we dispose of both these appeals by taking the facts from AY 2011-12.

2. Brief facts of the case are that Malda District Central Coperative Society is an entity dealing with borrowing and lending business. Under the provisions of Section 285BA of the Act, every person who is an assessee or other categories enumerated there and responsible for registering or responsible for registering, or, maintaining books of account or other document containing a record of any specified financial transaction, under any law for the time being in force, shall 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 1st day of April, 2004 and information relating to which is relevant and required for the purposes of this Act, to the prescribed income-tax or authority or agency. Malda District Central Cooperative Bank Ltd an assessee falling within the ambit of Section 285BA failed to comply with this legal requirement for the period of 2012-13. A notice dated 14.2.2013 was issued by the AO. On a request made on behalf of the representative of the Assessee, on 28.2.2013, time was extended till 18.3.2013. The assessee complied with the requirement of Section 285BA by filing the annual information return by 15.3.2013, the same was accepted and the assessment was concluded. However, subsequently the Office of the Director of Income Tax (Intelligence and Criminal investigation) served penalty order dated 19.3.2013 levying penalty of Rs. 56,100/- for the delay of 561 days in furnishing AIR.

2.1 Challenging the imposition of penalty, the assessee preferred these appeals on the following common revised grounds except variation in amounts. :—

“1. For that on the facts and in the circumstances of the case, the Ld. DIT was not justified in imposing penalty to the tune of Rs.56,100/- (for AY 2011-12) and Rs.19,600/- (for AY 2012-13) u/s. 271FA of the Act on the ground of failure to file the Annual Information Return in time.
2. For that on the facts and in the circumstances of the case, the Ld. DIT ought to have considered that there was reasonable cause on the part of the appellant in not filing the Annual Information Return in time.”

3. It is the argument of the learned AR that the AO having satisfied with the cause for the delay explained by the assessee extended the time for furnishing the AIR till 18.3.2013 and after the assessee complied with the direction within the extended time, it is not open for the authorities to resort to the penalty proceedings under section 271 FA of the Act. According to him, non-compliance with the requirement of Section 285BA of the Act till the notice, was non-intentional but only due to the fact that the assessee was not aware of the existence of such an obligation. Learned DR, on the other hand, submitted that the department is periodically launching awareness campaigns by advertising in the print and visual media about the obligation of the specified persons for filing of AIR by them, and it is not open for the assessee to contend that they are not aware of the obligation because the assessee got the accounts of all branches consolidated and audited, filed income Tax/TDS returns and aware of the obligations under the Act.

4. Basing on the above contentions, the point that arises for our consideration is whether there is sufficient cause for the assessee for non-compliance with the requirement of Section 285BA of the Act till the notice was served?

5. Facts are admitted. There is no dispute that the assessee, Malda District Central Cooperative Bank Ltd is an entity falling within the ambit of Section 285BA of the Act, it failed to comply with this legal requirement for the period of 2012-13 as such a notice dated 14.2.2013 was issued by the AO questioning the same. On a request made on behalf of the representative of the Assessee, on 28.2.2013, time was extended till 18.3.2013 and the assessee complied with the requirement of Section 285BA of the Act by filing the annual information return by 15.3.2013. Subsequently the Office of the Director of Income Tax (Intelligence and Criminal investigation) served penalty order dated 19.3.2013 levying penalty of Rs. 19,600/- for the delay of 196 days in furnishing AIR. According to the assessee, the default is not intentional, but due to ignorance of existence of such an obligation, whereas the revenue contends that there cannot be such an ignorance in view of the department conducting so much of awareness campaign and the assessee complying with other obligations under the Act.

6. Learned AR placed reliance on a decision Motilal Padampat Sugal Mills Co. Ltd. v. State of UP [1979] [118 ITR 326(SC) for the principle that there is no presumption in law that every persons knows the law. He also placed reliance on a decision reported in WTO v. S.P. Jayakumar [1983] 3 ITD 221 (Mad.) wherein it was held:—

“6. That the tax laws of this country are complex and complicated and often require for compliance, therewith the assistance of tax practitioners specialising in this field, is a well known fact. It is equally well known fact that the legislation in this field undergoes so frequent changes and amendments that it is not possible for even a person specialising in this field, including the tax administrator, to claim that he knows what exactly the law is on a particular given day or period without making references to the history of the enactments. In such circumstances, it would be a travesty of truth and justice to hold that the assessee knew or ought to have known the correct law and comply therewith, even though, in fact, he was not aware of the provisions.

7. It is well established by the decision of the Supreme Court in Hindustan Steel Ltd. v. State of Orissa [1972] 83 ITR 26 that the liability to pay penalty does not arise merely upon proof of default in complying with the statutory requirements and an order imposing penalty for failure to carry out a statutory obligation being the result of a quasi-criminal proceeding, will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct, contumacious or dishonest or acted in conscious disregard of its obligation and penalty will also not be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform the statutory obligation, it is stated, is a matter of discretion of the authority concerned to be exercised judicially on a consideration of all relevant circumstances and even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose it 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…”

He further placed reliance on a decision in Kaushal Diwan v. ITO [1983] 3 ITD 432 (Delhi) (TM), for the observation that:—

“It cannot be considered that each assessee, whether small or big, must rush to an income-tax specialist, practising as a lawyer or a chartered accountant, for his income-tax assessment especially when the income earned or being earned by him was too low. It cannot indeed be such a policy of the Government. In fact, on the other hand, an effort was being made to simplify the law so that the people could pursue their assessments before the department in a simple manner and that they do not have necessarily to depend on the professionals.

7. Again, it is not each default that must be punished and in this respect, support can be had on the observations of the Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa[1972] 83 ITR 26.”

Lastly, he brought to our notice a decision dated 20-02-2015 rendered by Lucknow Bench of the Tribunal in ITA No. 699/LKW/2013 (Raibereilly District Cooperative Bank Ltd v DIT (I&C), on an identical point.

7. While placing reliance on the above principles of law, learned AR contends that the breach in question is technical and venial one and not all intended or deliberate, and the explanation of the assessee as to their ignorance of obligation is sufficient cause within the meaning of Section 273B of the Act.

8. On a careful consideration of the matter, we find that except the instant alleged breach, nothing more is alleged against the assessee. As a matter of fact, the Director of Income Tax (Intelligence and Criminal investigation) who passed the penalty order himself observed in his order vide para No 3 that the assessee got the accounts of all branches consolidated and audited, and also filed Income Tax/TDS returns. The order of the Director of Income Tax (Intelligence and Criminal investigation) does not speak as to how the assessee stood to gain by contravening with the provisions of Section 285BA of the Act or the act of assessee resulted in any loss to the Revenue. Further, it is an acknowledged and judicially recognized fact that the tax laws of this country are complex and complicated and often require for compliance, therewith the assistance of tax practitioners specialising in this field, is a well known fact, and it is equally well known fact that the legislation in this field undergoes so frequent changes and amendments that it is not possible for even a person specialising in this field, including the tax administrator, to claim that he knows what exactly the law is on a particular given day or period without making references to the history of the enactments. In these circumstances, no mala fides can be attributed to the assessee so as to invoke the penalty proceedings under section 271FA of the Act and the learned Director of Income Tax (Intelligence and Criminal investigation) should have taken note that the breach is only technical or venial breach of the provisions of the Act and such a breach could have flown from a bonafide ignorance of the assessee that he is liable to act in the manner prescribed by the statute, and should not have invoked the penalty proceedings. We find every force in the argument of the learned AR and hold that the Penalty proceedings are liable to be set aside. We order accordingly, Both the appeals of the assessee are allowed.

9. In the result, both the appeals of the assessee are allowed.

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