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Malda District Central Co-op Bank Ltd. Versus Director of Income Tax (I&CI) Kolkata

2016 (9) TMI 147 - ITAT KOLKATA

Penalty under section 271FA - 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? - Held that:- 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 recog .....

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od 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 i .....

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hese 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 .....

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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 .....

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lty order dated 19.3.2013 levying penalty of ₹ 56,100/- for the delay of 561 days in furnishing AIR. 2. 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 ₹ 56,100/- (for AY 2011-12) and ₹ 19,600/- (for AY 2012-13) u/s. 271FA of the Act on the ground of fail .....

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in 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 .....

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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 compli .....

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nce 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 reported in Motilal Padampat Sugal Mills Co. Ltd vs State of UP [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 vs S.P. Jayakumar (1983) 3 ITD 221 (Mad) wherein it was held,- 6. That the tax laws of this count .....

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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 imposin .....

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cretion 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 reported in .....

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heir 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 byLucknow Bench of the Tribunal in ITA No. 699/LKW/2013 (Raibereilly District Cooperative Ban .....

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