The Unique Academy, Pune V. Additional Commissioner of Income-tax,

ITA 1034/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9271 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 17-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Additional evidence; Reasonable cause
• Section: 273B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.1034/PUN/2016 / ASSESSMENT YEAR : 2011-12 THE UNIQUE ACADEMY, 3 RD FLOOR, VASTU CHAMBER, SHIROLE ROAD, SHIVAJINAGAR, PUNE 411 005 PAN : AAEFT6497L . /APPELLANT VS. ADL.CIT, TDS RANGE, PUNE . / RESPONDENT ASSESSEE BY : SHRI S.N. PURANIK REVENUE BY : DR. VIVEK AGGARWAL, CIT-DR / DATE OF HEARING : 01.03.2018 / DATE OF PRONOUNCEMENT: 09.03.2018 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-10, PUNE, DATED 29-03-2016 FOR THE ASSESSMENT YEAR 2011-12. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE EXTRACTED AS UNDER: 1. CIT(A) ERRED IN CONFIRMING THE PENALTY U/S.272( 2)(K) LEVIED BY THE ASSESSING OFFICER. 2. APPELLANT PRAYS FOR JUST AND EQUITABLE RELIEF. 3. APPELLANT PRAYS TO ADD, ALTER, AMEND AND/OR WITH DRAW THE GROUND, SUBMIT EVIDENCE/ADDITIONAL EVIDENCE DURING APPEAL PROCEEDINGS. 3. BRIEFLY STATED RELEVANT FACTS ARE THAT THE ASSESSEE IS AN ACADEMY AND FILED E-TDS RETURNS IN FORM NO.26Q FOR THE FIRST QUARTE R OF THE F.Y. 2010-11 ON 22-09-2011 AGAINST THE DUE DATE OF 15-07-2 010 WITH THE 2 DELAY OF 434 DAYS. ACCORDINGLY, AS PER PARA NO.6 OF THE ASSESSMENT ORDER, PENALTY OF RS.43,400/- WAS LEVIED U/S.272(2)(K)/274 R.W.S . 200(3) OF THE I.T. ACT. THE SAID PARA NO.6 READS AS FOLLOWS : 6. IT IS, THEREFORE, PRESUMED THAT THE DEDUCTOR AS SESSEE HAS NOTHING MORE TO SAY IN THE MATTER. SINCE THE DEDUCTOR ASSE SSEE HAS NOT ESTABLISHED ANY REASONABLE CAUSE FOR DELAY IN FILIN G E-TDS RETURN IN FORM-26Q FOR IST QUARTER OF F.Y. 2010-11, I AM SATI SFIED THAT THIS IS A FIT CASE FOR LEVY OF PENALTY UNDER SECTION 272A(2)(K)/2 74 R.W.S. 200(3) OF THE I.T. ACT, 1961. AS PER THE PROVISIONS OF 272A(2)(K )/274 R.W.S. 200(3), THE DEDUCTOR ASSESSEE IS LIABLE FOR PENALTY OF RS.100/- PER DAY FOR THE PERIOD OF DELAY IN SUBMISSION OF FORM NO.26Q. THEREFORE, FOR DELAY OF 434 DAYS IN FILING E-TDS RETURN FOR IST QUARTER, PENALTY OF RS.100/- PER DAY TOTALING TO RS.43,400/- IS HEREBY LEVIED U/S. 272A(2)(K)/27 4 R.W.S. 200(3) OF THE I.T. ACT, 1961. 4. DURING THE FIRST APPELLATE PROCEEDINGS, ASSESSEE MADE A WRITTEN SUBMISSION AND THE SAME READS AS FOLLOWS : (I) ADDITIONAL CIT(TDS) HAS LEVIED PENALTY OF RS.4 3,400/- UNDER ABOVE SECTION FOR DELAY IN FILING FORM/RETURN OF TD S. (II) IT WILL BE SEEN FROM ENCLOSED CHART THAT TDS I S DEPOSITED ON 20/09/2011, AND RETURN IS FILED ON 22/09/2011 UNLES S THE PAYMENT OF TDS IS MADE, AND DATE OF PAYMENT COLUMN OF RETURN I S FILED IN RETURN DOES NOT GET UPLOADED. (III) DELAY IN FILING RETURN IS BECAUSE OF DELAY IN DEPOSITING TAX, WHICH IS REASONABLE CAUSE FOR DELAY. THEREFORE, NO PENALTY CAN BE LEVIED. (IV) NON-COMMUNICATION OF PAN AND TAN ETC. BY ENTIT IES WHOLE TDS IS DEDUCTION AND TO BE PAID ALSO IS A PROBLEM. IF THE PAN IS NOT COMMUNICATED BY THE PERSON/CONCERN, DEDUCTOR CANNOT DO ANYTHING, EXCEPT REQUESTING HIM. (V) WE RELY ON THE CUTTAK BENCH (ITAT) DECISION IN CASE OF N.K. MEDIA VENTURES P. LTD. (59 TAXMANN.COM 365) OR 154 ITD 53 7. (VI) RETURN COULD ONLY BE FILED ONLY AFTER THE PAYM ENT OF TAXES TO GOVERNMENT; PENALTY HAD BEEN LEVIED ONLY FOR DELAY FROM DATE OF PAYING TAXES TO THE GOVERNMENT. ON CONSIDERING THE SAID SUBMISSIONS, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE SAID PENALTY OF R S.43,400/- LEVIED U/S.272A(2)(K) OF THE ACT. IN THE PROCESS, CIT(A) DISMISS ED THE ASSESSEES SUBMISSION AS WELL AS THE REASONABLE CAUSE MA DE OUT BY THE ASSESSEE. BEFORE THE FIRST APPELLATE AUTHORITY, IT IS THE CASE OF THE 3 ASSESSEE THAT DELAY IN DEPOSITING THE TAX CONSTITUTES A REASONABLE CAUSE FOR DELAY. 5. BEFORE US TOO, IT IS THE CASE OF THE ASSESSEE THAT SIM ILAR ISSUE CAME UP FOR ADJUDICATION BEFORE THE TRIBUNAL IN THE CASE O F NAV MAHARASHTRA VIDYALAYA AND 38 OTHERS VIDE ITA NO. 832/PN /2016 AND OTHERS DATED 07-10-2016 FOR THE A.Y.2011-12 AND THE ISS UE STANDS COVERED. LD. AR FOR THE ASSESSEE REQUESTED FOR APPLYIN G THE SAID LEGAL PROPOSITION TO THE CASE OF THE ASSESSEE. 6. LD. DR FOR THE REVENUE RELIED ON THE ORDERS OF THE AO/CIT(A). 7. WE HEARD BOTH THE SIDES AND PERUSED THE ORDERS OF THE REVENUE AND THE ORDER OF THE TRIBUNAL (SUPRA) RELIED UPON BY THE ASSESSEE. WE FIND THE TRIBUNAL VIDE THE FINDING GIVEN IN PARA NO.28 HAS ALR EADY TAKEN A VIEW IN THIS MATTER AND THEREFORE, WE FIND IT RELEVANT TO EXTRACT THE SAME FOR THE SAKE OF COMPLETENESS OF THIS ORDER AS UNDER : 28. . . . . . . . .THE ONUS WAS UPON THE AUTHORIT IES TO PROVIDE PLATFORM FOR EASY COMPLIANCE TO NEWLY INTRODUCED PROVISIONS OF THE ACT. WHERE SUCH FACILITIES COULD NOT BE PROVIDED BY THE AUTHOR ITIES AND THE TECHNICAL SUPPORT NOT BEING AVAILABLE TO SMALL ASSESSEES, WHO ARE IN APPEAL BEFORE US, THEN THE DELAY IN FURNISHING THE E-TDS RETURNS LATE SHOULD BE LIBERALLY CONSTRUED. HENCE, THERE WAS PRACTICAL DIFFICULTY O N THE PART OF ASSESSEE TO COMPLY WITH NEWLY INTRODUCED REQUIREMENT OF E-TD S FILING OF TDS STATEMENTS, BEING TECHNICAL DELAY AND NOT VENIAL IN NATURE, MERITS TO BE CONSIDERED AS REASONABLE CAUSE FOR NON LEVY OF PENA LTY AS PER THE REQUIREMENTS OF SECTION 273B OF THE ACT. WE HOLD S O. IN THIS BUNCH OF APPEALS, THERE ARE CASES WHERE THE ASSESSEE HAS DEF AULTED IN NOT DEPOSITING TAX DEDUCTED AT SOURCE IN TIME, IN SUCH CASES, THE RETURNS WERE DELAYED BECAUSE OF DEFAULT ON BEHALF OF THE DE DUCTOR. IN SUCH CASES, PENALTY UNDER SECTION 272A(2)(K) OF THE ACT IS LEVIABLE. HOWEVER, THE SAME IS TO BE RESTRICTED FROM THE DATE OF PAYME NT OF TDS TO THE DATE OF FILING E-TDS STATEMENTS SINCE E-TDS STATEMENTS CANNOT BE FILED WITHOUT PAYMENT OF TDS TO THE CREDIT OF CENTRAL GOV ERNMENT. SIMILAR RATIO HAS BEEN LAID DOWN BY THE CHANDIGARH B ENCH OF TRIBUNAL IN M/S. ASHIRWAD COMPLEX VS. JCIT (TDS) (SUPRA). ACCO RDINGLY, WE HOLD SO. THE ABOVE EXTRACT SUGGESTS THAT NOT DEPOSITING THE T AX DEDUCTED AT SOURCE IN TIME CONSTITUTES A REASONABLE CAUSE SO FAR AS THE DELAY IN 4 FILING OF THE QUARTERLY E-TDS RETURNS IS CONCERNED. HOWEV ER, THE TRIBUNAL GAVE A FINDING THAT PENALTY U/S.272A(2)(K) OF THE AC T SHOULD BE CALCULATED FROM THE DATE OF PAYMENT OF TDS TO THE DATE OF FILING OF E-TDS STATEMENTS SINCE E-TDS STATEMENTS CANNOT BE FILED WITHOU T PAYMENT OF TDS TO THE CREDIT OF THE CENTRAL GOVERNMENT. FOR FILING TH E E-TDS RETURNS, THE REQUIREMENT OF REMITTING THE TAX TO GOVERNM ENT ACCOUNT IS A MUST. WITH SIMILAR DIRECTIONS, WE REMAND THIS ISSUE TO THE FILE OF AO FOR RECOMPUTING THE PENALTY IN ACCORDANCE WITH THE DIRECT IONS GIVEN BY THE TRIBUNAL (SUPRA). ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH DAY OF MARCH, 2018. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 09 TH MARCH, 2018 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// //TRUE COPY// SENIOR PRI VATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A)-10, PUNE 4. CIT-10, PUNE 5. , , B BENCH PUNE; 6. / GUARD FILE.