BHAVNESH SAINI (Judicial Member).-All the appeals by the assessee are directed against the common order of the learned Commissioner of Income-tax (Appeals)-2, Ludhiana, dated January 4, 2016, for the above assessment years challenging the levy of penalty under section 271FA of the Income-tax Act, 1961.
I have heard the learned representatives of both the parties and perused the findings of the authorities below.
According to the office, all the appeals of the assessee are time barred by 10 days. The assessee filed an application for condonation of delay explaining therein that the Sub-Registrar, Shri Dalbir Bhardwaj, had been suffering from depressionlblood pressure for the last some months and doctor had advised him bed rest on account of the above reasons, therefore, appeals could not be filed within time. Certificate of the doctor is filed. The assessee, therefore, prayed that the delay in filing the appeals may be condoned. The learned Departmental representative did not object to the same. Considering the explanation of tl1e assessee and the material on record, I am satisfied that the assessee was prevented by sufficient cause from filing the appeals within the period of limitation. The delay in filing the appeals is, therefore, condoned.
Brief facts of the case are that as per the p'rovisions of section 285BA of the Act, the Sub-Registrar (assessee) was required to file annual information returns for the financial year under appeals forms jurisdiction. The assessee had failed to file the annual information returns on time and delayed by a number of days as have been mentioned in the impugned The Assessing Officer noted in the penalty order that the Joint Sub-Registrar appeared for the assessee and filed proof of mailing application for allotment of Tm and request for further time to file the returns after allotment of TAN .. Later,on, Naib Tehsildar appeared and furnished proof regarding filing of the. annual information reports information :which was found to be late. The Assessing Officer, accordingly, levied the penalty under the above provisions.
5 The assessee submitted before the learned Commissioner of Income-tax (Appeals) that the delay in filing the return for the assessment years above was due to lack of knowledge and preparation of details and particulars required for filing the return; as it was new. duty for him. The assessee further explained that the newly appointed clerk on concerned duty, under bona fid~ belief and having rush of work could not file the said returns on time. There is no,tax liability upon the assessee. The learned Commissioner of Income-tax' (Appeals), however, dismissed the appeal of the assessee. The learned Commissioner of Income-tax (Appeals) also noted that the appeals are time barred and no request for condonation of delay have been made in this regard. Therefore,· the appeals of the assessee were dismissed.
The learned counsel for the assessee, at the outset, submitted that on the same facts and circumstances, the Income-tax Appellate Tribunal (SMC) Bench in the group cases of various Sub Registrars/Joint Sub Registrars, Amargarh, Dhuri and Malerkotla in I. T. A. No. 406/Chd/2016 and others, vide order dated' August 1, 2016, restored the matter in issue to the file of the Assessing Officer with a direction to redecide this issue in accordance with law. Copy of the order is placed on record and provided to the learned Departmental representative:He has, therefore, submitted that the issue on identical facts is covered by thea'bove order of the Tribunal, therefore, these appeals may also be restored,to,the file of the Assessing Officer for reconsideration. The learned Departmental representative, however, relied upon the orders of the authorities below and submitted that the appeals of the assessee may be dismissed.
After considering the rival submissions, I find that an identical issue was considered by the Income-tax Appellate Tribunal USMC" Bench intne case of Sub Registrars/Joint Sub Registrars, Amargarh, Dhuri and Malerkotla v. DIT (CIB), Chandigarh, etc., in grdup cases (supra) and, vide order dated August 1, 2016, the identical matter in issue have been restored to the file of the Assessing Officer for reconsideration. The findings of the Tribunal in paragraphs 5 and 6 of this order are reproduced as under :
"5. After considering the rival submissions, I am of the view the matter requires reconsideration at the level of the Assessing Officer. The assessee has made a part compliance before the Assessing Officer and, according to the Assessing Officer, the annual information reports returns ate filed With a delay. The learned counsel for the assessee' reiterated the submissions made before the learned Commissioner of Income tax (Appeals) and also submitted that the requisite infrastructure was not available with the assessee to file the annual information reports online, therefore, returns were filed manually and this fact was explained to the Assessing Officer as well. He has submitted that even facts have not been taken into consideration and further, the learned Commissioner of Income-tax (Appeals) has not given any opportunity to file application for condonation of delay specifically. On going through the impugned order, it is clear that the assessee made part compliance before the Assessing Officer and the learned counsel for the assessee from the details submitted in the paper book explained that the returns were filed manually belatedly because required infrastructure was not available with the Sub-Registrar to file the returns online. Further, the order of the learned Commissioner of Income-tax (Appeals) does not disclose if any opportunity was given to the assessee to file application for condonation of delay. Further, when appeals have been decided on the merits, it should not be later on dismissed being time barred in limine.' The Assessing Officer did not consider that no loss to the Revenue have been caused. The explanation of the assessee before the Assessing Officer/the learned Commissioner of Income-tax (Appeals) have not been specifically dealt with the hon'ble Delhi High Court in the case of Woodward Governor India P. Ltd. V. CIT [2002] 253 ITR 745 (Delhi) held as under (headnote):
'Levy of penalty under section 271C of the Income-tax Act, 1961, for failure to deduct tax of source, is not- automatic. In order to bring in application of section 271C, in the backdrop of the overriding non obstante clause in section 2736, absence of reasonable cause, existence of which has to be established, is a sine qua non. Before levying penalty, the concerned officer is required to find out that even if there was any failure to deduct tax at source, the same was without reasonable· cause. The initialpurqen is on the assessee to show that there exists reasonable cause which was the reason for the failure. Thereafter, the officer has to consider whether the explanation offered by the assessee or other person as regards the reason for failure, was on account of reasonable cause.'
The assessee is able to explain prima facie reasonable cause and, therefore, the assessee was required to file some evidence or material along with the same. Since' the assessee is a Government agency therefore, one more chance should be given to the assessee to prove reasonable cause before the Assessing Officer, therefore, in my 'thew the matter requires reconsideration at the level of the Assessing Officer. I, accordingly, set aside the orders of the authorities below and restore the matter in issue to the file of the Assessing Officer with a direction to redecide this issue in accordance with law by giving reasonable sufficient opportunity of being heard to the assessee. The assessee may produce adequate evidence or material before the Assessing Officer in support. of the contention to establish reasonable cause as per law.
6. In the result, all the appeals of the assessee are allowed for statistical purposes."
8 I, therefore, following the above order in the case of Sub Registrars/Joint Sub Registrars, Amargarh, Dhuri and Malerkotla (supra), find that the issue is identical, therefore, following the reasons for the decision in the above case, I set aside the orders of the authorities below and restore the matter in issue to the file of the Assessing Officer with a direction to redecide this issue in accordance with law by giving reasonable sufficient opportunity of being heard to the assessee. The assessee may produce adequate evidence or material before Assessing Officer in support of the contention to establish reasonable cause as per law.
9 In the result, all appeals of the assessee are allowed for statistical purposes.
10 Order pronounced in the open court.