THE AKOLA URBAN CO. OP. BANK LTD., Akola V. CIT, (TDS), Nagpur

ITA 1/NAG/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3142 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 01-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Bonafide belief

Judgement Text

1 ITA NOS. 01,02&03/NAG/2015. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. ITA NOS.01, 02 & 03/NAG/2015 ASSESSMENT YEARS : 2012 - 13, 2013 - 14 & 2014 - 15. THE AKOLA URBAN COOPERATIVE COMMISSIONER OF INCOME - TAX (TDS), BANK LIMITED, AMRAVATI. VS. NAGPUR. TAN NGPT0158F APPELLANT. RESPONDENT. APPELLANT BY : SHRI K.P. DEWANI. RESPONDENT BY : SHRI NARENDRA KANE. DATE OF HEARING : 14 - 01 - 2016. DATE OF PRONOUNCEMENT : 5 - 2 - 2016. O R D E R PER SHRI SHAMIN YAHYA, A.M . THESE ARE APPEAL S BY ASSESS EE AGAINST THE COMMON ORDER OF LEARNED COMMISSIONER OF INCOME - TAX (TDS), NAGPUR DATED 28/10/201 4 . THE COMMON ISSUE RAISED IS THAT LEARNED CIT ERRED IN LEVYING PENALTY U/S 272 A(2) ( F ) OF THE INCOME - TAX ACT. 2. IN THIS CASE PENALTY WAS LEVIED ON THE G ROUND THAT ASSESSEE DE DUCTOR HAS FAILED TO DELIVER DE CLARATION MENTIONED IN SECTION 197 A WITHIN PRESCRIBED TIME LIMIT AND THUS COMMITTED A DEFAULT WITHIN THE MEANING OF SECTION 272 A(2)F. THE PENALTY LEVIED WAS AS UNDER.: - F.Y. 2011 - 12 RS. 1,54,078 / - F.Y. 2012 - 13 RS. 2,53,290 / - F.Y. 2013 - 14 RS. 2,48,547 / - 2 ITA NOS. 01,02&03/NAG/2015. 3. A GAINST ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE C OUNSEL AND PERUSED THE RECORD. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT FORM NO. 15G AND 15H RECEIVED BY THE ASSESSEE HAVE BEEN SUBMITTED TO THE INCOME TAX DEPARTMENT WITHOUT ISSUE OF ANY NOTICE AND HAVE BEEN VOLUNTARILY SUBMITTED . THE DEL AY HAS BEEN CAU SED DUE TO THE REASON THAT THE EMPLOYEE OF THE ASSESSEE BANK IN TH IS REGARD W AS UNDER THE BON A F IDE BELIEF THAT FORM HAVE TO BE DEPOSITED IN THE INCOME TAX DEPARTMENT AFTER THE END OF THE FIN ANCIAL YEAR INSTEAD OF QUARTERLY INTERVALS AS PER LAW. HENCE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THERE IS REASONABLE CAUS E FOR THE DELAY. FURTHER THE LEARNED COUNSEL SUBMITTED THAT THERE ARE SEVERAL CASE L AWS FOR THE PROPOSITION THAT PENALTY MAY NOT BE LEVIED FOR TECHNICAL AND V ENI A L BREACH AS UNDER.: - 1. ITAT ORDER IN ITA NO. 300 - 304/NAG/2015 IN THE CASE OF VIDARBHA CRICKET ASSOCATION VIDE ORDER DATED 31/12/2015. 2. ITAT ORDER IN ITA NO. 81 - 84/NAG/2015 IN THE CASE OF SENIOR POST MASTER VIDE ORDER DATED 31/12/ 2015. 3. 83 ITR 26(SC) HINDUSTAN STEEL LTD. VS. STATE OF ORISSA. THE LEARNED COUNSEL FURTHER PLEADED THAT THERE IS NO LOSS TO THE REVENUE. THAT NOW ONWARDS THE ASSESSEE IS MAKING PROPER COMPLIANCE. 5. PER CO NTRA LEARNED D . R . RELIED UPON THE ORDER OF THE LEARNED CIT . 6. UPON CAREFUL CONSIDERATION WE ARE INCLINED TO A GREE WITH THE SUBMISSION OF LEARNED COUNSEL OF THE ASSESSEE. WE ALSO NOTE THAT THE RELEVANT RETURN HAS BEEN FURNISHED VOLUNTARILY AFTER THE END OF FINANCIAL YEAR. HENCE THERE IS CONSIDERABLE COGENCY IN THE PLEA THAT CONCERNED STAFF WAS UNDER THE BONAFIDE BELIEF THAT THE RELEVANT INFORMATION HAVE TO BE FURNISHED TO THE I.T. DEPARTMENT AFTER THE END OF THE FINANCIAL YEAR. THE REASONABLE CAUS E ATTRIBUTED FOR THE DELAY CAN BE CONSIDERED TO BE BONF IDE U/S 273 B OF THE I . T . A CT. FURTHERMORE THE CASE L AWS AS REFER RED ABO VE DULY SUPPORT THE CASE OF THE ASSEESSEE THAT LEVY OF 3 ITA NOS. 01,02&03/NAG/2015. PENALTY IN SUCH CASES CAN BE T ERMED AS TECHNICAL AND VENIAL BREACH NOT WA RRANTING LEVY OF PENALTY. WE MAY GAINFULLY REFER HERE THE EXPOSITION OF HONBLE APEX COURT IN HINDUSTAN STEEL LTD. (SUPRA) AS UNDER : AN ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF A QUASI - CRIMINAL PROCEEDIN G, AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONEST, OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERE LY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORITY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. EVEN IF A MINI MUM PENALTY IS PRESCRIBED, THE AUTHORITY COMPETENT TO IMPOSE THE PENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY , WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFF ENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE. 7. IN THE BACKGROUND OF AFORE SAI D DISCUSSION AND PRECEDENT WE SET ASIDE THE ORDER OF LEARNED CIT AND DELETE THE LEVY OF PENALTY. 8. IN THE RESULT THESE APPEAL S BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF FEB. , 2016 SD/ - SD/ - (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 5 TH FEB. , 2016 . 4 ITA NOS. 01,02&03/NAG/2015. COPY FORWARDED TO : 1. THE AKOLA URBAN COOP. BANK LTD., TOSHNIWAL LAYOUT, NEAR GOVT. MILK SCHEME, MURTIZAPUR ROAD, AKOLA - 444001. 2. I.T.O. (TDS), WARD - 2(2), AMRVATI. 3. COMMISSIONER OF INCOME - TAX (TDS), NAGPUR. 4. D.R., ITAT, NAGPUR. 5. GUARD FILE . TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE.