CENTRAL GOVT. HEALTH SCHEME, MUMBAI V. ADDL CIT (TDS) RG 2, MUMBAI

ITA 112/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2671 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 07-01-2015
• Court: TRIBUNAL
• Department Lawyers: UDAY BHASKAR JAKKE
• Assessee Lawyers: S S SAVALE
• Keywords: Reasonable cause

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI R.C . SHARMA, A M AND SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO. 112 /MUM/2015 ( / ASSESSMENT YEAR: 2011 - 12 ) CENTRAL GOVT. HEALTH SCHEME DDO CGHS GR. FLOOR SOUTH WING PRATISHTHA BHAVAN 101, M.K. ROAD, M UMBAI - 400 020 . / VS. ADDL. CIT (TDS) RANGE - 2 701 SMT. KG MITTAL AYURVEDIC HOSPITAL BLDG. CHARNI RD.(W) MUMBAI - 2 . ./ ./ PAN/GIR NO. MUM 00388D ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI S.S. SAVALE / RESPONDENT BY : SHRI UDAY BHASKAR JAKKE / DATE OF HEARING : 19 /07 /2016 / DATE OF PRONOUNCEMENT : 19/07/2016 / O R D E R PER R.C. SHARMA , A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 14 , MU MB AI (CIT(A) FOR SHORT) DATED 13.11 . 2014 FOR THE ASSESSMENT YEAR (A.Y.) 2011 - 12 , IN THE MATTER OF IMPOSITION OF PENALTY U/S 272A(2)(K) OF THE I.T. ACT,1961. 2 ITA NO. 112 / M UM/2015 (A.Y. 2011 - 12 ) CENTRAL GOVT. HEALTH SCHEME VS. ACIT 2. WE HAVE HEARD LD. DR AND ALSO GONE THROUGH WRITTEN SUBMISSION S FILED BY ASSESSEE . 3. WE HAVE GONE THROUGH ORDERS OF AUTHORITIES BELOW AND FOUND THAT WHILE LEVYING PENALTY U/S 272A(2)(K) THE LD. AO OBSERVED THAT THE ASSESSEE WAS REQUIRED TO FILE FORM NO.24Q AND 26Q QUARTERLY U/S 200(3) R.W.RULE31A WHICH THE ASSESSEE HAD FILED BELATEDLY FOR ALL FOUR QUARTERS IN RESPECT OF FORM 24Q AND FOR THREE QUARTERS FOR FORM 26Q. HENCE PENALTY WAS LEVIED @ RS. 100 PER DAY FOR EA CH DEFAULT. IT WAS SUBMITTED BY THE ASSESSEE BEFORE AO THAT IT WAS MANDATORY TO FILL IN PAN NUMBER OF DEDUCTEES IN THESE FORMS AS PER RULE 31A(4)(III); AND SINCE PAN WAS NOT AVAILABLE IN RESPECT OF SOME DEDUCTEES AND THERE W AS WRONG PAN IN SOME CASES, THER E WAS DELAY. A CIRCULAR ISSUED BY ASSESSEE TO DEDUCTEES TO SUPPLY PAN NUMBER WAS ALSO SUBMITTED. AS REGARDS, DELAY IN RESPECT OF CONTRACTORS PAYMENTS, IT WAS SUBMITTED THAT THE ASSESSEE WAS NOT AWARE OF THE REQUIREMENT AND IMMEDIATELY FILED THE SAME ON BEI NG POINTED OUT BY AUDIT PARTY. 4. BY OBSERVING THAT ASSESSEE FAILED TO FULFILL THE REQUIREMENT OF SECTION 200(3) WHICH WAS INSERTED WITH EFFECT FROM 01.05.2010, THE AO LEVIED PENALTY FOR DELAY IN FILING DECLARATION. BY THE IMPUGNED ORDER CIT(A) CONFIRM ED THE ACTION OF AO. 3 ITA NO. 112 / M UM/2015 (A.Y. 2011 - 12 ) CENTRAL GOVT. HEALTH SCHEME VS. ACIT 5. WE HAVE CONSIDERED CONTENTIONS OF DR AND DELIBERATED ON THE JUDICIAL PRONOUNCEMENTS REFERRED BY LOWER AUTHORITIES IN THE IR RESPECTIVE ORDERS , AS WELL AS WRITTEN SUBMISSION FILED BY ASSESSEE BEFORE US. IN THE WRITTEN SUBMISSION IT WAS PROVIDED THAT THERE WAS NO LIABILITY OF ASSESSEE U/S 200(3) TO FILE STATEMENT. THE LIABILITY HAS BEEN PROVIDED BY SECTION 200(2A) W.E.F. 1 - 6 - 15. HENCE PENALTY SHOULD BE CANCELLED SIMPLY ON THIS GROUND. IT IS FURTHER SUBMITTED THAT SECTION 272A IS APPLICABL E TO PERSON AND THE ASSESSEE IS NOT A PERSON, BEING GOVT. OF INDIA ITSELF, WITHIN THE MEANING OF SECTION 2(31). THE SECTION DOES NOT IMPOSE ANY PENALTY ON PERSON RESPONSIBLE FOR DEDUCTING TAX; BUT ON PERSON IN GENERAL. HENCE PENALTY IS NOT LEVIABLE AT ALL FOR WANT OF ANY PROVISION TO IMPOSE PENALTY ON GOVT. DEPARTMENT. THE TERM PERSON RESPONSIBLE FOR DEDUCTING TAX HAS BEEN DEFINED IN SECTION 204. THAT SECTION ALSO PROVIDED THAT GOVT. IS NOT PERSON RESPONSIBLE FOR PAYING TAX. THIS SECTION WAS AMEND W.E.F. 1 - 7 - 2012 TO PROVIDE THAT GOVT. DEPARTMENT CAN ALSO BE DEFAULTER. THIS DATE OF AMENDMENT IS AFTER THE DATE OF 26 - 12 - 11 WHEN THE LD. AO HAD PASSED ORDER LEVYING PENALTY. HENCE PENALTY WAS NOT LEVIABLE AS PER PREVAILING LEGAL PROVISIONS. 6. WE FOUND THAT NON - AVAILABILITY OF PAN WAS A REASONABLE CAUSE FOR WHICH EVIDENCE WAS ALSO SUBMITTED BEFORE LOWER AUTHORITIES IN THE FORM OF CIRCULAR ISSUED 4 ITA NO. 112 / M UM/2015 (A.Y. 2011 - 12 ) CENTRAL GOVT. HEALTH SCHEME VS. ACIT BY ASSESSEE FOR SUPPLY OF PAN VIDE ANNEXURE A. H ENCE PENALTY SO LEVIED FOR DELAY IN FIL ING DECLARATION SHOULD BE CANCEL LED ON THIS GROUND OF REASONABLE CAUSE. 7. IN VIEW OF THE ABOVE DISCUSSION WE DIRECT THE AO TO DELETE THE PENALTY SO IMPOSED U/S 272A(2)(K) OF THE I.T. ACT. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOU NCED IN THE OPEN COURT ON 19 JULY , 201 6 SD/ - SD/ - ( SANDEEP GOSAIN ) ( R.C. SHARMA) / JUD I C I AL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 19 . 0 7 .201 6 PS. ASHWINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBA I.