ORDER
N.L. Dash, J.M.
These two appeals filed by the assessee are directed against the order of the Commissioner (Appeals)-I, Bhubaneswar, confirming the penalties of Rs. 14,203 and Rs. 23,800 imposed under section 272A(2)(c) of IT Act for the assessment years 1996-97 and 1997-98, respectively.
2. This is a peculiar case of its nature where the assessee is not an individual but the State of Orissa itself, being represented through Executive Engineer, PH Division, Berhampur, Ganjam. So, for all practical purposes, Executive Engineer PH Division, Berhampur, has to be treated as assessee. The moot question proposed to be decided by us in this appeal relates to the point whether leniency can be shown to Executive Engineer, PH Division, for non-furnishing of annual return in Form No. 26C by due dates, i.e., 30-6-1997 and 30-8-1999, for the respective assessment years under consideration. However, the same were filed on 2-8-1999, after notices were issued by the Department. The assessing officer imposed penalties for the same as per law under section 272A (2)(c) of the Income Tax Act.
3. The assessee went in first appeal before the Commissioner (Appeals) who confirmed the penalties imposed by the assessing officer. He has elaborately discussed the matter in para 3 of his order dt. 1-5-2000, which is quoted hereunder for better appreciation of facts :
“I have considered the submissions. I find that the contention regarding water problem leading to delay in filing of return was not raised before the Addl. CIT and it was merely claimed before him that as soon as the letter from the ITO (TDS) was received the annual return not only for this year but also for the subsequent year was filed on 2-8-1999, while claiming that the same had already been sent through peon book on 26-3-1999, being the date of delivery in income-tax office. It is a matter of record that the appellant has not been filing annual returns in time not only for this year but in the past,also. The default was there, inasmuch as that for the financial year 1995-96 the annual return was not filed at all. Even if the plea of the concerned officer remaining busy with the water problem be accepted for a moment (though not permissible as per law having not been raised before the lower authorities), the concerned officer cannot expect the Department to believe that he was busy throughout the year(s) in only the problem which was a perennial one. When the appellant found time to file the returns on receipt of notices from the ITO (TDS), the same could have been found earlier also despite the alleged claim of being busy. In the circumstances, I am of the opinion that the delay is not attributable to a reasonable cause and the Addl. CIT has correctly held that the appellant was liable to penalty, which having been levied at only the minimum rate, there is no reason for me to interfere.”
Aggrieved by the said order of the Commissioner (Appeals), the assessee is in further appeal before the Tribunal.
4. While defending his client, the learned senior counsel, Mr. S.N. Rotho, gave a very vivid picture of the provision of the law relating to section 2(31) of Income Tax Act read with section 272A(2)(c). He also relied on a number of case laws which include the one of the Hon’ble Orissa High Court relating to section 482, Crl. PC in the case of Bata alias Batakrushna Behra & Ors. v. Anama Behra 1990 CA LJ 110. He also cited the case of Hindustan Steels Ltd. v. State of Orissa (1972) 83 ITR 26 (SC), decided by the Hon’ble Apex Court and another case law reported in Marg Construction Ltd. v. Jt. CIT (2003) 81 TTJ (Chen) 440 regarding non-deduction of TDS. He further relied on the order dt. 16-2-1996, of this Bench of Tribunal in the case of Sibonarayan Patro & Bros. v. ITO in ITA Nos. 255 to 257/Ctk/1994 reported at (1996) 54 TTJ (Ctk) 644-Ed.) dealing with penalty under section 271B Further citing the case of Union Coal Company, the learned counsel vociferously urged the Bench to take a pragmatic view and delete the penalty.
5. On the other hand, learned Departmental Representative on behalf of the revenue strongly supported the orders of the authorities below and pleaded that no leniency should be shown to this type of assessee because the assessee in the instant case, is a habitual offender. He also strongly relied on the orders of the authorities below :
6. After considering the rival submissions and on our careful perusal of the material available on record, we are unable to persuade ourselves to the arguments advanced by the senior counsel, Mr. Rotho, in this case. It should be borne in mind that the State itself cannot discharge its duties, that is why the different organisations of the State are to be associated with and in the process the executive engineer is a part and parcel of the State administration. We are not in agreement with the learned counsel that because of the consecutive incumbents coming in succession the onus of filing return in Form 26 could not be discharged and now after imposing of penalty, a problem will arise relating to recovery of the same. However, we need not comment on this since it is an administrative matter, but we would certainly like to make our observations that executive engineer is not alone to discharge both the official and field duties. He is assisted by a number of persons in the process. He cannot escape the liabilities of discharging his onus. Of course, as the head of the institution, the responsibility and burden lies on him to have a look into the matter. At the same time certainly it is due to certain laches in his office. Simply because recovery will be difficult for the State, income-tax law cannot maintain a double standard, one for the State and another for private individual. Remaining busy cannot be a ground to escape the liability. When bills are not paid in spite of reminders, connections are also cut by the PH Division. Law will take its own course irrespective of persons remaining busy for one work or the other. It is duty of each person to manage his own affairs in his own way. Therefore, law cannot abate for any person for such a plea to take a lenient view. With this regrettable observation we uphold the orders of the Commissioner (Appeals) confirming the penalties imposed by the assessing officer under section 272A(2)(c).
7. In the result, the assessee fails and the appeals filed by him are dismissed.