Wp(C)/674/2014 Of Sub Registrar, Sri.v.g.cleetus v. Director Of Income Tax (Intelligence)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 14 DAY OF JULY 2023 / 23RD ASHADHA, 1945WP(C) NO. 674 OF 2014 PETITIONER: SUB REGISTRAR, SRI.V.G.CLEETUSSUB REGISTRAR'S OFFICE, VADANAPPALLY-680614BY ADV SRI.A.KUMAR RESPONDENTS: 1DIRECTOR OF INCOME TAX (INTELLIGENCE)K K TOWERS, 5TH FLOOR, M G ROAD, COCHIN-682011 2THE UNION OF INDIAMINISTRY OF FINANCE,NORTH BLOCK, NEW DELHI-110001,REP BY SECRETARY, MINISTRY OF FINANCEBY ADV SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 22.06.2023, THE COURT ON 14.07.2023 DELIVEREDTHE FOLLOWING: ANU SIVARAMAN, J. = = = = = = = = = = = = = = = W.P.(c).No.674 of 2014 = = = = = = = = = = = = = = = = Dated this the 14[th] day of July, 2023 JUDGMENT 1.This writ petition is filed with the following prayers:- A.Issue a Writ of Mandamus or such other appropriate Writ, orderor direction setting aside Ext.P5 order passed by the Income TaxAppellate Tribunal and direct the Income Tax Appellate Tribunal,Cochin Bench to reconsider the appeal ITA No. 458/Coch/2013 forthe assessment year 2011-12 filed by the petitioner afresh onmerits. Or in the alternative to prayer (A) B.Issue a Writ of Mandamus or such other appropriate Writ, orderor direction setting aside Ext. P2 order passed by the 1[st]respondent. 2.Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondents. 3. The petitioner, who was the Sub Registrar at the SRO, Vadanappally is aggrieved by the imposition of penalty under Section 271FA of the Income Tax Act, 1961 on the premise ofnon filing of a return, despite the petitioner having furnishedexplanation and shown sufficient and reasonable cause. It issubmitted that under Section 285BA(1)(b) of the Income TaxAct, the petitioner is required to furnish Annual InformationReturn (AIR) in the prescribed form to the Income TaxAuthority in relation to certain specified financial transactions.Under sub section 2 of Section 285BA, the information is to befurnished after the end of the financial year in a CD-ROM orany computer readable media. 4. It is submitted that the petitioner assumed charge as SubRegistrar at Vadanappally on 12.7.2011. The due date forfurnishing of the report (AIR) for the year 2010-11 was31.8.2011 for the year ending 31.3.2011. The petitioner wasunder the bona fide impression that the information wouldhave already been submitted by his predecessor. On receipt ofa show cause notice to appear on 11.1.2013, the petitionermade enquires and he took up the matter with M/s Karvy DataManagement Services Ltd., an approved agency with whom theGovernment departments entrust the work of filing. It is only when the petitioner received an intimation from the 1[st]respondent that the petitioner came to know that the data hasnot been filed. A copy of the data was again generated andhanded over to the said agency and uploaded on 6.2.2013. respondent that the petitioner came to know that the data hasnot been filed. A copy of the data was again generated andhanded over to the said agency and uploaded on 6.2.2013. when the petitioner received an intimation from the 1[st]respondent that the petitioner came to know that the data hasnot been filed. A copy of the data was again generated andhanded over to the said agency and uploaded on 6.2.2013. respondent that the petitioner came to know that the data hasnot been filed. A copy of the data was again generated andhanded over to the said agency and uploaded on 6.2.2013. 5. It is submitted that despite the petitioner expressing hisregret, the 1[st] respondent passed an order of penalty. Thepetitioner preferred Exhibit P4 appeal before the Income TaxAppellate Tribunal, Cochin Bench and the Tribunal, on thebasis of earlier orders passed in ITA 180/Coch/13 dated18.7.2013, came to the conclusion that Tribunal has nojurisdiction to entertain the appeal, even though the 1[st]respondent itself has in its order indicated that appeal lies tothe Tribunal. The Tribunal also having indicated that theCIT(A) is equivalent in rank and that the remedy may not beefficacious, the petitioner approached this Court. regret, the 1[st] respondent passed an order of penalty. Thepetitioner preferred Exhibit P4 appeal before the Income TaxAppellate Tribunal, Cochin Bench and the Tribunal, on thebasis of earlier orders passed in ITA 180/Coch/13 dated18.7.2013, came to the conclusion that Tribunal has nojurisdiction to entertain the appeal, even though the 1[st]respondent itself has in its order indicated that appeal lies tothe Tribunal. The Tribunal also having indicated that theCIT(A) is equivalent in rank and that the remedy may not beefficacious, the petitioner approached this Court. 6.The learned counsel for the petitioner submits that Section271FA of the Income Tax Act provides that penalty may beimposed in case of non-compliance with the provisions ofSection 285BA(1)(b)of the Act. It is submitted that Section271FA of the Income Tax Act provides that penalty may beimposed in case of non-compliance with the provisions ofSection 285BA(1)(b)of the Act. It is submitted that Section 273B of the Act provides that in a case where it can be shownthat the delay in providing the details as required underSection 285BA(1) was on account of a reasonable cause, thenthe penalty is liable to be totally waived. It is, therefore,contended that the refusal on the part of the respondents toconsider the reasonable cause shown by the petitioner andimposing penalty under Section 271FA is illegal and untenable.It is further submitted that the appeal preferred by thepetitioner has also been disposed of without a properconsideration. It is contended by the learned counsel for thepetitioner that the petitioner had submitted the appeal beforethe Tribunal as specifically stated in the order and that therefusal on the part of the Tribunal to consider the appeal was,therefore, unjustified. 7.A statement has been placed on record by the respondentsstating that ignorance of law is not an excuse and that thoughit is an admitted fact that the petitioner was the Sub Registrarwho took charge on 12.7.2011, no reason whatsoever has beenshown for not filing the Annual Information Return in time. Itis submitted that the fact of non-filing of the return in time is admitted. There is no requirement for any element of mens reain the light of the specific language of the provisions. It isfurther stated that the contention raised by the petitioner thathe was prevented from submitting the return in time has beenspecifically considered at paragraph 2 of Exhibit P2 and it washeld that the reason stated by the Sub Registrar cannot betreated as sufficient reason for the inordinate delay in filingthe returns. It is further contended that no appeal lies to theTribunal from an order under Section 271FA. admitted. There is no requirement for any element of mens reain the light of the specific language of the provisions. It isfurther stated that the contention raised by the petitioner thathe was prevented from submitting the return in time has beenspecifically considered at paragraph 2 of Exhibit P2 and it washeld that the reason stated by the Sub Registrar cannot betreated as sufficient reason for the inordinate delay in filingthe returns. It is further contended that no appeal lies to theTribunal from an order under Section 271FA. 8.Having considered the contentions advanced and in view of thespecific provisions of the statute, I am of the opinion that thecontentions raised by the petitioner that the issue ofreasonable cause under Section 273B of the Act has not beenconsidered by the respondents cannot be accepted. Therespondents had specifically considered the contention raisedby the petitioner and had held that the reasons stated by thepetitioner do not constitute a reasonable cause to excuse theirdelay of 525 days in submitting the returns. It is also clearthat though the provision permits the imposition of Rs.500/-per day as penalty only Rs.100/- per day has been inflicted. sj In the above view of the matter, I am of the opinion that theprayers as sought for in the writ petition are not liable to begranted. The writ petition fails and the same is accordinglydismissed. Sd/-Anu Sivaraman, Judge APPENDIX OF WP(C) 674/2014 PETITIONER EXHIBITS P1:-TRUE COPY OF THE LETTER DTD 6/2/2013 ISSUED BY THE PETITIONER TO THE IST RESPONDENT P2:-TRUE COPY OF THE ORDER ISSUED UNDER SECTION 274 READ WITH SECTION 271FA BY THE IST RESPONDENT DTD 20/5/2013 P3:-TRUE COPY OF THE NOTICE OF DEMAND ISSUED BY THE IST RESPONDENT DTD 20/5/2013 P4:-TRUE COPY OF THE MEMORANDUM OF APPEALFILED BY THE PETITIONER DTD 12/6/2013 P5:-TRUE COPY OF THE ORDER OF THE TRIBUNAL DTD 13/9/2013 True copy PS to Judge