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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Chandra Poojari, AM & Shri George George K, JM
Per George George K, JM :
These appeals at the instance of the assessee are directed against separate order of the CIT(A). The orders of the CIT(A) arise out of the order passed u/s 272A(2)(c) r.w.s. 274 of the Income-tax Act, 1961.
The assessees in the case of M/s.Mekkadampu Service Co-operative Bank Limited (SA No.37/Coch/2019 arising out of ITA No.418/Coch/2019), M/s.Uzhuva Service Co-operative Bank Limited (SA No.35/Coch/2019 arising out of ITA
ITA No.418/Coch/2019 & Ors. 4 SA No.37/Coch/2019 & Ors. M/s.Mekkadampu Service Co-op Bank Ltd & Ors. No.392/Coch/2019) and M/s. Neendoor Service Co-operative Bank Limited (SA No.36/Coch/2019 arising out of ITA No.405/Coch/2019) have also filed stay applications seeking to stay the recovery of outstanding tax arrears.
There is a delay of 14 days and 8 days in filing appeals in ITA Nos.418/Coch/2019 and 405/Coch/2019, respectively. The assessees have filed petition for condonation of delay. We have perused the reasons stated for filing these appeals belatedly. We find that there is sufficient cause for the delayed filing of the appeals and no latches can be attributed to the assessees. Hence, we condone the delay and proceed to dispose off the same on merits.
The brief facts of the case are as follow:
4.1 The assessees are Co-operative Societies registered under the Kerala Co-operative Societies Act, 1969. The assessees were served with notice u/s 133(6) of the Income- tax Act. The assessees were directed to furnish details of the persons who had deposited above Rs.5 lakhs during the financial years 2010-2011, 2011-2012 & 2012-2013. The assessees were also directed to give details of the persons, who had received interest income exceeding Rs.10,000 during the above mentioned financial years. The assessees did not furnish the details called for under the notice issued u/s 133(6). The Assessing Officer, therefore, initiated penalty proceedings u/s 272A(2)(c) r.w.s. 274 and imposed penalty @
ITA No.418/Coch/2019 & Ors. 5 SA No.37/Coch/2019 & Ors. M/s.Mekkadampu Service Co-op Bank Ltd & Ors. Rs.100 per day in respect of the impugned assessees, as follows:-
Sr. Name of the assessee Period Penalty No. amount. 1. Mekkadampu Service 25.09.2013 to 49,900 Co-operative Bank Ltd. 05.02.2015 ITA No.418/Coch/2019 2. Uzhuva Service Co- 30.09.2013 to 81,300 operative Bank Limited 22.12.2015 ITA No.392/Coch/2019 3. Neendoor Service Co- 21.02.2014 to 24,900 operative Bank Limited 27.10.2014 ITA No.405/Coch/2019 4. Pallikkal Naduvilemuri 21.02.2014 to 24,900 Service Co-operative 27.10.2014 Bank Limited ITA No.262/Coch/2019 5. Pallippuram Village 07.02.2014 to 59,400 Service Co-operative 23.09.2015 Bank Limited ITA No.261/Coch/2019 6. Thycattussery Service 30.09.2013 to 81,300 Co-operative Bank 22.12.2015 Limited ITA No.260/Coch/2019 7. Pudukkad Service Co- 25.09.2013 to 56,300 operative Bank Limited 10.04.2015 ITA No.259/Coch/2019 8. Manakkad Service Co- 20.10.2014 to 31,000 operative Bank Limited 25.08.2015 ITA No.235/Coch/2019 9. Polpully Service Co- 25.09.2013 to 50,000 operative Bank Limited 06.02.2015 ITA No.226/Coch/2019
ITA No.418/Coch/2019 & Ors. 6 SA No.37/Coch/2019 & Ors. M/s.Mekkadampu Service Co-op Bank Ltd & Ors.
4.2 Aggrieved by the orders of the imposition of penalty, the assessees preferred appeals to the first appellate authority. The CIT(A) dismissed the appeals filed by the assessees.
Aggrieved by the orders of the CIT(A), the assessees have filed the present appeals. Since the grounds raised are almost similar, except variance in figure, we reproduce the grounds raised in case of Mekkadampu Service Co-operative Bank Ltd. in ITA No.418/Coch/2019 as follows:-
“1. On the facts and in the circumstances of the case and in law the Commissioner of Income-tax (Appeals) erred in arriving into a conclusion that the Income tax Officer (I&CI) is an authority to call for information under section 133(6) of Income tax Act without appreciating the fact that the power to call for information under section 133(6) is vested on the Assessing Officer, the Deputy Commissioner (Appeals), the Additional Commissioner or the Commissioner (Appeals) and therefore the Income Tax Officer (I&CI) is not an authority to invoke provision under the said section.
The Commissioner of Income-tax (Appeals) ought to have seen that the information under Section 133(6) shall be called for only for the purpose of the Income Tax Act 1961 and no such purpose was mentioned in the notice issued by the Income Tax Officer (J&CI), Kochi.
The Commissioner of Income-tax (Appeals) ought to have seen that the information called for under Section 133(6) should be useful for, or relevant to any enquiry as instructed in para 4.3 of Chapter 4 of Manual of Office Procedure which states that the Assessing Officer, the Addl. Commissioner and the Commissioner (Appeals) may, u/s 133 call for certain information relevant for any proceedings under the Act.
The Commissioner of Income-tax (Appeals) ought to have seen that the "inquiry" and "enquiry" have different and distinct meaning in the Income Tax Act 1961 and refers to different contexts and that the information for the purpose of the Act which are useful for, or relevant to any "enquiry" only shall be called for under Section 133(6) and that there was no
ITA No.418/Coch/2019 & Ors. 7 SA No.37/Coch/2019 & Ors. M/s.Mekkadampu Service Co-op Bank Ltd & Ors. mention in the notice issued by Income Tax Officer (I&CI) about any such "enquiry" under the Income Tax Act 1961.
The Commissioner of Income-tax (Appeals) ought to have seen that the imposition of penalty is time barred under section 275(1) (c) of The Income Tax Act 1961in as much as the proceedings for imposition of penalty was initiated on the date of notice issued by the Income Tax Officer (I&CI), Kochi for the initiation of such proceedings.
The Appellant prays that the penalty of Rs. 49,900/- imposed by the Joint Director of Income Tax (I&CI), Kochi in respect of non-furnishing of information called for under Section 133(6) by the Income Tax Officer (I&CI), Kochi be deleted. 7. The Appellant craves leave to add, amend, alter vary and / or withdraw any or all the above grounds of Appeal.”
5.1 The learned Counsel for the assessees reiterated the submissions made before the Income-tax Authorities.
5.2 The learned Departmental Representative submitted that the Cochin Bench of the Tribunal in the case of The Kakoor Service Co-operative Bank Ltd. in ITA No.473/Coch/2015 & Others (21 appeals) order dated 23.08.2017 had adjudicated an identical issue in favour of the Revenue.
We have heard the rival submission and perused material the record. On identical facts the Cochin Bench of the Tribunal in the cases of Kakoor Service Co-operative Bank Ltd. (supra) had held that the penalty imposed u/s 272A(2)(c) of the Act is valid. The relevant finding of the Tribunal reads as follow:-
''8. I have heard the rival contentions and perused the material on record. From the grounds raised and the argument note submitted by the assessee, I am of the view that three
ITA No.418/Coch/2019 & Ors. 8 SA No.37/Coch/2019 & Ors. M/s.Mekkadampu Service Co-op Bank Ltd & Ors.
contentions are raised by the assessee in this appeal; namely; (i) ITO (Intelligence) does not have jurisdiction to issue notice u/s 133(6) of the I T Act; (ii) the order passed u/s 272A(2)(c) is barred by limitation;
(iii) there was reasonable cause, as mentioned in section 2738 of the Act for non furnishing information sought u/s 133(6); therefore, penalty u/s 272A(2) ( c) of the I T Act is to be quashed.
8.1 I shall take up for adjudication each of the above three contentions as under:
i) ITO (Intelligence) does not have jurisdiction to issue notice u/s 133(6) of the I T Act:
Section 133(6) of the I T Act 1961 is unambiguous and clear. The department under the said section has power to call for information in relation to such points or matters which would be useful for, or relevant to any proceeding under the Act from 'any person' including a 'Banking Company' or 'any Officer' thereon. Later, an amendment was introduced as per the Finance Act 1995 whereby, the words ''enquiry or" were inserted before the word ''proceeding'' in Section 133(6), also adding the '2nd proviso' to the said provision, with effect from 1.7.1995. The effect of the said amendment is that, the power to call for information under the un-amended Act which was confined only in relation to a 'pending proceeding' came to be widened, and even in a case where no proceeding was pending, such information could be called for as part of the enquiry, subject to the rider that, such power was not to be exercised by any income tax authority below the rank of Director or Commissioner without the prior approval of the Director or the Commissioner, as the case may be. The said amendment was brought about as a measure to tackle tax evasion effectively, as clarified by the Central Board of Direct Taxes (CBDT) vide Circular no. 717 dated 14.8.1995, which reads as follows:
"Power to call for information when no proceeding is pending. - ...
41.2 At present the provisions of sub-section (6) of section 133 empower Income-tax authorities to call for information which is useful for, or relevant to, any proceeding under the Act which means that these provisions can be invoked only in cases where the proceedings are pending and not otherwise. This
ITA No.418/Coch/2019 & Ors. 9 SA No.37/Coch/2019 & Ors. M/s.Mekkadampu Service Co-op Bank Ltd & Ors.
acts as a limitation or a restraint on the capability of the Department to tackle evasion effectively. It is, therefore, thought necessary to have the power to gather information which after proper enquiry, will result in initiation of proceedings under the Act.
41.3 With a view to having a clear legal sanction, the existing provisions to call for information have been amended. Now, the income- tax authorities have been empowered to requisition information which will be useful for or relevant to any enquiry or proceedings under the Income-tax Act in the case of any person. The Assessing Officer would, however, continue to have the power to requisition information in specific cases in respect of which any proceeding is pending as at present. However, an Income-tax authority below the rank of the Director or Commissioner can exercise this power in respect of an inquiry in a case where no proceeding is pending, only with the prior approval of the Director or the Commissioner."
8.2 In the instant case, notice u/s 133(6) of the Act was issued by the ITO (Intelligence) after obtaining necessary approval from the Director of Income Tax (Intelligence). The Hon'ble Supreme Court in the case of Kathiroor Service Co-op Bank Ltd vs C/T (CIB) & others, reported in 360 ITR 243 have considered an identical case and decided that the ITO(CIB) has power to issue notice u/s 133(6) of the IT Act The relevant findings of the Hon'ble Supreme Court, read as follows:
"19. In view of the aforesaid, we are of the view that the powers under section 133(6) are in the nature of survey and a general enquiry to identify persons who are likely to have taxable income and whether they are in compliance with the provisions of the Act. It would not fall under the restricted domains of being "area specific" or "case specific". Section 133(6) does not refer to any enquiry about any particular person or assessee, but pertains to information in relation to "such points or matters" which the assessing authority issuing notices requires. This clearly illustrates that the information of general nature can be called for and names and addresses of depositors who hold deposits above a particular sum is certainly permissible.
In the instant case, by the impugned notice the assessing authority sought for information in respect of its customers which have cash transactions or deposits of Rs. 1,00,000 or
ITA No.418/Coch/2019 & Ors. 10 SA No.37/Coch/2019 & Ors. M/s.Mekkadampu Service Co-op Bank Ltd & Ors.
above for a period of three years, without reference to any proceeding or enquiry pending before any authority under the Act. Admittedly, in the present case, notice was issued only after obtaining approval of the Commissioner of Income-tax, Co chin. In the light of the aforesaid, we are of the considered opinion that the assessing authority has not erred in issuing the notice to the assessee-financial institution requiring it to furnish information regarding the account holder with cash transactions or deposits of more than Rs.1,00,000.
Therefore, we hold that the Division Bench of the High Court was justified in its conclusion that for such enquiry under section 133(6) the notice could be validly issued by the assessing authority. 22. In view of the above, the appeal requires to be dismissed and accordingly, stands dismissed. " 8.3 In the light of the judgment of the Hon'ble Apex Court (supra) and the aforesaid reasoning, I am of the view that the ITO (Intelligence) has jurisdiction to issue notice u/s 133(6) of the I TAct
(ii) the order passed u/s 272A(2)(c) is barred by limitation: 8.4 Section 275(1)(c) of the Act prescribed the time limit for imposition of penalty u/s 272A(2)(c) of the I T Act Section 275(1)(c) of the I T Act, reads as follows: "275(1) . (c) in any other case after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed, or six months from the end of the month in which action for imposition of penalty is initiated, whichever period expires later. "
8.5 Admittedly, penalty proceedings u/s 272A(2)(c) was initiated on 12.8.2014 by issuance of notice u/s 274 of the I T Act and the order imposing penalty u/s 272A(2)(c) was passed on 19.9.2014. Therefore, the penalty order is well within the time limit prescribed u/s 275(1)(c) of the Act The Judgment of the Hon'ble Rajasthan High Court, relied on by the Id AR of the assessee, in the case of CIT vs Sri Jithendra Singh Rathore, is not applicable to the facts of the instance case. In the case considered by the Hon'ble Rajasthan High Court the penalty proceedings u/s 2710 was initiated by issuing notice on 25.3.2003 and the penalty order was passed only on
ITA No.418/Coch/2019 & Ors. 11 SA No.37/Coch/2019 & Ors. M/s.Mekkadampu Service Co-op Bank Ltd & Ors.
30.9.2003 by which time, six months period mentioned u/s 275(l)(c) had already expired. The contention of the Id AR that notice issued u/s 133(6) should be reckoned for considering the time limit u/s 275(1)( c) of the Act is de-void of any merits; because Section 275(1)( c) prescribes the time limit only from the date of initiation of penalty proceedings; namely issuance of notice u/s 274 of the Act for the aforesaid reasons, I hold that the order passed by the Jt Director of Income Tax (Intelligence) is a valid order. (iii) there was reasonable cause, as mentioned in section 2738 of the Act for non furnishing information sought u/s 133(6); therefore, penalty u/s 272A(2) (c) of the I TAct is to be quashed: 8.6 The assessee has not offered any valid reason for not furnishing the information called for u/s 133(6) of the Act. Many of the notices issued by the ITO (Intelligence) were never responded to by the assessee. In many instances the Assessing Officer has mentioned that when they had approached, the assessee Society, for seeking information u/s 133(6) of the Act there was total lack of co-operation on the part of the assessee society as well as threat (reference order imposing penalty u/s 272A(2)(c) in appeals ITA No.202/C/2017 and ITA N0.217/C/ 2017). Since there is no reasonable cause furnished by the assessee as mentioned u/s 2738 of the I T Act for non furnishing of information sought by the ITO(intelligence) u/s 133(6) of the Act I am of the view that the order imposing penalty cannot be quashed. It is ordered accordingly.
9 In the result, the appeal in ITA No.473/Coch/ 2015 is dismissed.
Both the parties have agreed that the facts considered by the Tribunal in ITA No 473/C/2015 are identical to the facts of the other appeals. Therefore, for the reasons stated in para 8 to 8.6, the appeals in ITA Nos. 243/Coch/2013, 544/Coch/ 2015, 190/Coch/2016, 126/Coch/2017, 158/Coch/ 2017, 153/Coch/2017, 146/C/2017, 194/C/2017, 159/C/2017, 197/C/2017, 196/C/2017, 195/C/ 2017, 152/C/2017, 204/C/2017, 206/C/2017, 200/C/2017, 198/C/2017, 202/C/2017, 201/C/ 2017 and 217/C/2017 are dismissed.
11 To sum-up all the 21 appeals filed by the different assessees are dismissed."
In view of the above order of the Tribunal which is identical to the facts of the present cases, we hold that the
ITA No.418/Coch/2019 & Ors. 12 SA No.37/Coch/2019 & Ors. M/s.Mekkadampu Service Co-op Bank Ltd & Ors. CIT(A) is justified in upholding the orders passed u/s 272A(2)(c) of the Income-tax Act. It is ordered accordingly.
SA Nos. 35, 36 & 37/Coch/2019
Since the appeals are disposed off, the Stay Applications filed by the assessees are dismissed as infructuous.
In the result, the appeals filed by the assessees and the stay applications filed by the assessees (SA Nos.35, 36 and 37/Coch/2019) are dismissed.
Order pronounced on this 08th day of July, 2019.
Sd/- Sd/- (Chandra Poojari) (George George K.) ACCOUNTANT MEMBER JUDICIAL MEMBER
Cochin ; Dated : 08th July, 2019. Devdas*
Copy of the Order forwarded to : 1. The Appellants. 2. The Respondent. 3. The CIT, Kochi. 4. CIT(A)-I, Kochi. 5. DR, ITAT, Cochin 6. Guard file. BY ORDER,
(Asstt. Registrar) ITAT, Cochin