2010 P T D (Trib.) 1373
[Income-tax Appellate Tribunal Pakistan]
Before Munsif Khan Minhas, Judicial Member
I.T.A. No.234/IB of 2010, decided on 30/03/2010.
Income Tax Ordinance (XLIX of 2001)---
----S.182---Penalty for failure to furnish a return or statement---Filing of return manually within time---Late filing of return electronically---Assessee filed its return electronically which was late by 29 days---Since return was late, Taxation Officer issuing show-cause notice imposed a penalty under 5.182 of the Income Tax Ordinance, 2001---Validity---Held, was no wilful default on the part of assessee as the taxpayer had also produced the copy of return manually filed within due dates---Assessing Officer failed to take into account such fact judiciously---No default on the part of assessee had been established against the assesseee---Imposition of penalties was legally not justified---Such piece of legislation was totally against the concept of facilitation rather it was compulsion---Taxpayer had to earn money to pay to government as tax---Tax officials were bound to complete their data and it was not for the assessee that he should complete the data entry of Federal Board of Revenue---Such legislation may be useful in the most developed countries where literacy rate was high that people feel easy to push button of computer instead of using the pen but circumstances of Pakistan at this stage warrant that choice be given to the taxpayer as to how he felt convenient to do the thing---No tax was payable from the assessee as the department had not levied any additional tax and the penalty could not be imposed---Order of First Appellate Authority was upheld by the Appellate Tribunal and the departmental appeal was dismissed as being without merits.
Ayesha Khalid for Appellant.
Nasir Absar for Respondent.
ORDER
MUNSIF KHAN MINHAS (JUDICIAL MEMBER).--The Department has filed this appeal against the order dated 21-12-2009 passed by CIR(A-1) Islamabad for the tax year, 2008 on the following grounds:
(i) "Feeling being aggrieved the taxpayer filed appeal before the CIR(A). The worthy CIR(A) has deleted the penalty on the ground that no proper opportunity was given (as time was not extended as was asked by the taxpayer); hence imposition of penalty is illegal.
(ii) The worthy CIR(A) was not justified to delete the penalty without giving any cogent reason. The order of the Taxation Officer is specking in itself and sufficient time was given to the taxpayer to file the required statements which it failed to do so".
2. Brief facts leading to this appeal are that assessee-company has filed its return for the tax year, 2008 on 29-1-2009 electronically which was due 31-12-2008 i.e. late by 29 days, since the return was late, therefore, Taxation Officer issuing show-cause notice under section 182 of the Income tax Ordinance, 2001 imposed a penalty at Rs.33,180 under section 182 of the Income Tax Ordinance, 2001. According to Taxation Officer the AR of the assessee filed his explanation on 30-3-2009, which was examined in the light of provisions of the law and was found unsatisfactory, therefore, the same was rejected and penalty order was passed under section 182 of the Income Tax Ordinance, 2001. Being dissatisfied with the treatment given by the Taxation Officer the assessee preferred appeal before the learned CIR(A) who after considering the facts and circumstances of the case deleted the penalty imposed by the Taxation Officer in the assessment order with the following observation.
"Keeping in view the facts and circumstances of the case, it is concluded that "the delay is not wilful, therefore the penalty imposed by the Taxation Officer at Rs.33,180 is therefore deleted."
Being dissatisfied with the treatment accorded by the learned CIR(A), Department has come up in appeal before the Tribunal on the ground raised supra.
3. Reiterating the above mentioned grounds of appeal the learned DR contends that the assessee failed to file statements within stipulated time limit, therefore the Taxation Officer was well within his jurisdiction to impose penalties under section 182(1) of the Income Tax Ordinance, 2001. The learned D.R. further contends that the learned Appeals Commissioner was not justified to delete the penalty without giving any cogent reason. The order of the Taxation Officer is speaking in itself and sufficient time was given to the taxpayer to file the required statements but he failed to do so. On contrary learned AR of the assessee states ground No.1 of appeal that `no proper opportunity was given" is misconceived as the CIR(A) has not decided the case on this ground. The learned CIR(A) has decided by relying on the fact that the delay was not wilful and return was filed well within requested extended time because department did not respond in negative. Hence the grounds of appeal of the department are vague. The learned AR also states that show-cause notice and the assessment order were issued without mentioning the subsection of section 182 of the Income Tax Ordinance, 2001.The show-cause notice was issued for the imposition of penalty of 14 days whereas the order was passed for 29 days. The penalty intended to be imposed in the show-cause notice was "minimum penalty which is Rs.500 whereas the penalty imposed was in contradiction to the said notice. The calculation of penalty imposed is wrong even it is calculated other than minimum penalty then it comes to Rs.10,071 on 29 days. Whereas if calculated on 14 days as per show-cause notice then it comes to Rs.5,171. He also pleads that learned ITAT in ITAT No.4575/LB of 2004 has decided that anything, which had not done in a particular lawful manner, it will not be sustainable. The return was filed within requested extended time on 29-1-2009 as the application for extension were filed duly within time and no order of rejection of time extension were filed duly within time and no order of rejection of time extension was received by the appellant-company.
47. I have heard the respective submissions of both parties and perused the relevant record. I am convinced to hold that there is no wilful default on the part of the assessee. The taxpayer has also produced the copy of return manually filed within due dates. The Assessing Officer has failed to take into account this fact judiciously. No default on the part of assessee has been established against the assessee. Hence, impositions of penalties in question are legally not justified. Before parting with the issue we want to pinpoint that such piece of legislation is totally against the concept of facilitation rather it is compulsion. It is the taxpayer who has to earn money and then pay to Government as tax. It is the duty of tax official to complete their data. It is not for the assessee that the should complete the data entry of F.B.R. Such legislation may be useful in the most developed countries where literacy rate is so high that people feel easy to push button of computer instead of using the pen but circumstances of our country at this stage warrant that choice be given to the taxpayer as to how he feels convenient to do the things. There is not tax payable demand against the assessee, as the department has not levied any additional tax. Therefore, the penalty cannot be imposed. In view of these facts and circumstances of the case I hereby uphold the order of learned CIR(A) and dismiss the departmental appeal as being without merits.
C.M.A./71/Tax (Trib.)Appeal dismissed.