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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI G. S. PANNU, AM & SHRI AMARJIT SINGH, JM
O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 07.12.2011 passed by the Commissioner of Income Tax (Appeals)-31, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y. 2007-08 in which the penalty levied by the AO has been ordered to be confirmed.
The assessee has raised the following grounds: - 1. The learned commissioner of Income Tax (Appeals) erred in confirming the penalty under section 140A(3) r.w.s, 221 of the Income Tax Act, levied by the assessing officer on delayed payment of self-assessment tax of Rs. 16,99,983/-due to unavailability of fund during the relevant period.
ITA. No.636/M/2012 A.Y. 2007-08
The learned commissioner of Income Tax (Appeal] erred in confirming the penalty disregarding the fact that the appellant was compelled to pay unexpected tax demand vide reassessment order u/s 143(3) r.w.s 263 of the Income Tax Act, for the assessment year 2001-02 in the financial year relevant to the assessment year under consideration. The appellant craves leave to add, to alter, amend or modify all or any of the grounds of appeal either at or before the hearing of the appeal.” The brief facts of the case are that the assessee filed his return 3. of income on 31.10.2007 declaring total income to the tune of Rs.84,05,889/-. Thereafter, the assessment was completed u/s 143(3) of the Act on 30.11.2009. At the time of assessment proceeding, it was noticed that the assessee was under obligation to pay the self- assessment tax along with interests before filing of his return of income for the A.Y. 2007-08 as per provisions u/s 140A of the I.T. Act, 1961. The assessee failed to pay the self-assessment tax alongwith interest due before the filing of return of income for the A.Y. 2007-08, therefore, the penalty proceeding was initiated and penalty u/s 140A(3) r.w.s 221 of the Act, 1961 was levied to the tune of Rs.17,23,792/-. Thereafter, the assessee filed an appeal before the CIT(A) who confirmed the penalty, therefore, the assessee has filed the present appeal before us.
ISSUES No. 1:-
4. Under this issue the assessee has challenged the confirmation to levy the penalty by the AO in view of the provision u/s 140A(3) r.w.s.
ITA. No.636/M/2012 A.Y. 2007-08 221 of the I.T. Act, 1961 to the tune of Rs.17,23,792/-. At the very outset, the Ld. Representative of the assessee has argued that the case of the assessee has duly been covered by the decision of the Hon’ble ITAT in the case of Heddle Knowledge P. Ltd. Vs. ITO (2018) 90 taxmann.com 376 and also by the Mumbai Bench in the case of Balraj PrakashChand Bansal Vs. DCIT in dated 19.03.2018, therefore, in the said circumstances, the order of the CIT(A) is not liable to be sustainable in the eyes of law. However, on the other hand, the Ld. Representative of the Department has refuted the said contention. On appraisal of the finding of the CIT(A) and relevant record on the file, it is not in dispute that the assessee failed to deposit self-assessment tax well in time relating to the A.Y. 2007-08. The assessee filed the return of income on 31.10.2007 and the assessment was completed on 30.11.2009 u/s 143(3) of the Act. The assessee paid the self-assessment tax in sum of Rs.1,00,000/- on 25.11.2008 and in sum of Rs.10,00,000/- on 04.12.2008 and in sum of Rs.5,99,983/- on 16.01.2009 total to the tune of Rs.16,99,983/- and in brief the self-assessment tax was not filed in time. Now it is to be seen whether the penalty in view of the provision u/s 140A(3) r.w.s. 221 of the I.T. Act, 1961 is liable to be levied or not. In such of circumstances, the Hon’ble ITAT, Mumbai has passed the detailed order in the case of title as Heddle Knowledge P. Ltd. Vs. ITO (2018) 90 taxmann.com 376. In which specifically held that in the such a circumstances the penalty is not leviable. The relevant finding
ITA. No.636/M/2012 A.Y. 2007-08 has been given in para no. 2,3,4,5 & 6 which are hereby reproduced below.: -
In this appeal, the solitary dispute is with regard to the penalty imposed u/s 221(1) r.w.s. 140A(3) of the Act of Rs.25,98,646/-. In brief, the relevant facts are that the appellant-assessee filed a return of income for Assessment Year 2009-10 on 30.09.2009 declaring an income of Rs.9,93,58,270/-, which was not accompanied by self-assessment tax payable at Rs.2,59,89,461/- . The Assessing Officer issued a communication to the assessee dated 18.01.2010 requiring the assessee to produce the proof of payment of self-assessment tax alongwith the interest thereon. In response, assessee vide letter dated 08.02.2010 sought more time to clear the liability of payment of self-assessment tax. Subsequently, on 11.02.2010, the Assessing Officer show- caused the assessee as to why the penalty u/s 221 r.w.s. 140A(3) of the Act should not be imposed for the failure of the assessee to pay the self-assessment tax within the stipulated time. The orders of the authorities below reveal that the defence of the assessee was primarily the plea of financial stringency and also the fact that the tax was ultimately deposited on 02.03.2010 before the penalty was imposed by the Assessing Officer vide order dated 08.03.2010. The Assessing Officer as well as the CIT(A) did not find the reasons advanced by the assessee to be satisfactory to mitigate the levy of penalty. As per the Assessing Officer, the provisions of Sec. 140A(3) r.w.s 221 of the Act did not provide any discretion to the Assessing Officer not to levy the penalty. Considering that the assessee had defaulted in payment of self- assessment tax within the stipulated period and was thus liable to be treated as “assessee in default as per the provisions of Sec.140A(3) r.w.s. 221(1) of the Act, he imposed the penalty @ 10% of the delayed self-assessment tax of Rs.2,59,89,461/-, thereby resulting in a penalty of Rs.25,98,946/-. The said penalty has further been affirmed by the CIT(A) also.
Against the aforesaid background, the plea raised by the assessee before us is quite different from what has been raised before the lower authorities. At the time of hearing, the learned representative has given a new twist to the controversy by pointing out that the provisions of Sec. 140A(3) of the Act, as it stood for the ITA. No.636/M/2012 A.Y. 2007-08 year under consideration, did not envisage levy of penalty for the delay in deposit of self-assessment tax. In order to appreciate the point sought to be raised by the learned representative, the following discussion is relevant.
Sec. 140A(3) of the Act, as it stands for the year under consideration, reads as under :- “140A(3) If any assessee fails to pay the whole or any part of such tax [or interest or both] in accordance with the provisions of sub- section (1), he shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of the tax [or interest or both] remaining unpaid, and all the provisions of this Act shall apply accordingly.”
5. Our attention has been drawn to the erstwhile Sec. 140A(3) of the Act which was operative upto 31.03.1989 and was amended by the Direct Tax Laws (Amendment) Act, 1987, and the erstwhile provision read as under :- “(3) If any assessee fails to pay the tax or any part thereof in accordance with the provisions of sub- section (1), the Assessing Officer may direct that a sum equal to two per cent of such tax or part thereof, as the case may be, shall be recovered from him by way of penalty for every month during which the default continues; Provided that before levying any such penalty, the assessee shall be given a reasonable opportunity of being heard.” Quite clearly, in terms of the provisions of Sec. 140A(3) of the Act as existing till 31.03.1989, the Assessing Officer was empowered to levy penalty in cases where assessee had failed to pay the self-assessment tax, and such penalty was leviable for every month during which the default continued of a sum equal to 2% of such tax or part thereof. At the time of introduction of the new section by the Direct Tax Laws (Amendment) Act, 1987 w.e.f. 01.14.1989, the Explanatory notes issued by CBDT vide Circular no. 549 of 31.10.1989 contained the following, which seeks to explain the import of the substitution of new section. The relevant paragraphs of the Circular dated 31.10.1989 (supra) are reproduced as under :- “Para 4.17 : The old provisions of subsection (3) of the section provided for levy of penalty for non- payment of self-assessment tax, since the rate of mandatory interest for failure to pay the tax has now been increased, it is not necessary to retain this provision any more. The amending Act has accordingly omitted the said sub section (3). 4.18 : In order to vest the power of recovery of tax and interest due under this section on the basis of the return, amending Act 1987, has inserted a new sub section (3) in the section to provide that if any assessee has not ITA. No.636/M/2012 A.Y. 2007-08 paid self assessment tax and interest in full before filing the return, he shall be deemed to be an assessee in default in respect of such tax and interest.” Quite clearly, if one is to read the earlier Sec. 140A(3) of the Act and the amended section w.e.f. 1.4.1989 alongwith the explanatory notes to the amendment conjointly, it is clear that the earlier provision prescribing for levy of penalty for default outlined in Sub-section (1) of Sec. 140A(3) has yielded place to mandatory charging of interest for such default. The aforesaid legislative intent also gets strength by the fact that simultaneously the legislature prescribed for mandatory charging of interest u/s 234B of the Act for default in payment of self- assessment tax w.e.f. 01.04.1989 onwards.
However, a contrary position is taken by the Revenue to the effect that for having defaulted in payment of self-assessment tax within the stipulated period, assessee qualifies to be “an assessee in default” as prescribed in the amended Sec. 140A(3) of the Act and, therefore, if one is to read the same with Sec. 221(1) of the Act, the action of the Assessing Officer in imposing penalty is quite justified. In sum and substance, it is sought to be emphasised on the strength of Sec. 221(1) of the Act that the penalty is leviable so long as the default is in the nature which renders the assessee as an “assessee in default” for payment of tax. Sec. 221(1) of the Act prescribes for penalty when assessee is in default in making the payment of tax. On the face of it, the argument of the Revenue appears to be justified, so however, the same does not merit acceptance if one examines the issue in slight detail. Notably, the penalty envisaged Sec. 140A(3) in the unamended provision was on the statute alongwith the penalty envisaged u/s 221 of the Act. Once Sec. 140A(3) of the Act has been amended w.e.f. 01.04.1989, as we have seen earlier, there is no amendment of Sec. 221 of the Act and it continues to remain the same. What we are trying to emphasise is if the plea of the Revenue is to be accepted, based on the amendment to Sec. 140A(3) of the Act, it would mean that prior to 01.04.1989 the same default invited penal provisions under two sections, namely, Sec. 140A(3) as well as Sec. 221(1) of the Act, which would appear to be peculiar and unintended. Furthermore, the intention of the legislature at the time of insertion of the amended Sec. 140A(3) makes it clear that the old provisions of Sec. 140A(3) prescribing for levy of penalty for non-payment of self-assessment tax was no longer found necessary because the said default would henceforth invite mandatory charging of ITA. No.636/M/2012 A.Y. 2007-08 interest. Ostensibly, the legislature did not envisage that consequent to the amendment, the default in payment of selfassessment tax would hitherto be covered by the scope of Sec. 221(1) of the Act. The emphasis of the Revenue is to point out that the non-payment of self-assessment tax renders the assessee “in default” in the amended provision which further prescribes that “all the provisions of this Act shall apply accordingly” and, therefore, the default is hitherto (from 01.04.1989) covered by Sec. 221(1) of the Act. In our view, the consequence of the aforesaid two expressions contained in Sec. 140A(3) are also not of the type sought to be understood by the Revenue, and rather the assessee is to be treated as an “assessee in default” for the limited purpose of enabling the Assessing Officer to make recovery of the amount of tax and interest due and not for levy of penalty, an aspect which has been specifically done away in the new provision. Therefore, considered in the aforesaid light, in our view, the fact that the amended Sec. 140A(3) w.e.f. 01.04.1989 does not envisage any penalty for non-payment of self- assessment tax, the Assessing Officer was not justified in levying the impugned penalty by making recourse to Sec. 221(1) of the Act. Before parting, we may again emphasise that Sec. 221 of the Act remains unchanged, both during the pre and post amended Sec. 140A(3) of the Act and even in the pre-amended situation, penalty u/s 221 of the Act was not attracted for default in payment of self-assessment tax, which was expressly covered in pre 01.04.1989 prevailing Sec. 140A(3). Thus, without there being any requisite corresponding amendment to Sec. 221 of the Act in consonance with the amendments carried out in Sec. 140A(3) of the Act w.e.f. 01.04.1989, the Assessing Officer erred in levying the impugned penalty. Thus, on this aspect, we hereby set-aside the order of CIT(A) and direct the Assessing Officer to delete the penalty imposed u/s 140A(3) r.w.s. 221(1) of the Act.”
The facts are not distinguishable at this stage also. The fact of the present case is quite similar to the facts of the case Heddle Knowledge P. Ltd. (supra). In view of the finding of the Hon’ble ITAT in the case of Heddle Knowledge P. Ltd. (supra), we are of the view that the finding of the CIT(A) is not justifiable, therefore, we
ITA. No.636/M/2012 A.Y. 2007-08 set aside the finding of the CIT(A) on this issues and decide this issue in favour of the assessee against the revenue.