Case Law Details
Shree Ram Dass Rice & General Mills Vs DCIT (ITAT Chandigarh)
A perusal of Section 271BA shows that the law makers have used the words “may” and not “shall”, thereby making their intentions clear in as much that levy of penalty is discretionary and not automatic. The said conclusion is further justified by Section 273B of the Income Tax Act, 1961. A careful reading of Section 273B encompasses that certain penalties “shall” not be imposed in cases where reasonable cause is successfully pleaded. It is seen that penalty imposable u/s 271BA is included therein. By the said provision, the law makers have unambiguously made it clear that no penalty “shall be” imposed if the assessee “proves that there was a reasonable cause for the said failure”. As noticed, the statutory provision shows that the word “shall” has not been used in Section 271BA as then the imposition of penalty would have been mandatory. Section 273B as noted further throws light on the legislative intent as it specifically provides that no penalty “shall” be imposed if the assessee proves “that there was reasonable cause for the said failure”. In the facts of the present case, it is seen that the consistent explanation of the assessee has been ignored. The assessee has pleaded ignorance in regard to the said legal requirement and has demonstrated that the said Form was made available in the assessment proceedings to the AO which fact is not disputed by the revenue also. The assessee has further stated that based on the report, no adjustments have been proposed by the TPO. Copy of the order dated 31.03.2017 passed u/s 92CA(3) has been filed in the Court. We find that nothing has been placed before us to show that either the assessee is a habitual defaulter or that no explanation has been offered or for that matter, the explanation offered is false. No plausible reasons have been given by the Revenue why the explanation offered cannot be accepted. It is seen that the ld. CIT(A) has proceeded as though the levy of penalty is automatic. In the facts of the present case, we find that admittedly the assessee has failed to upload electronically Form No. 3CEB. However, accepting the bonafide explanation consistently offered, we accept the same as an unintentional bonafide mistake. Being satisfied by the explanation offered by the assessee after considering the position of law as applicable, we hold that it was a case of bonafide mistake. Accordingly, the respective orders imposing and confirming the penalty are set aside. The penalty order is quashed.
FULL TEXT OF THE ITAT JUDGEMENT
The present appeal has been filed by the assessee assailing the correctness of the order dated 04.05.2018 of CIT(A)-2 Ludhiana pertaining to 2014-15 assessment year on the following grounds :
1. That on the facts, circumstances of the case and in law, the Worthy CIT(A) through his order dated 28.02.2018 has erred in passing that order in contravention of the provisions of S. 250(6) of the Income Tax Act, 1961.
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