Chiranjeev Restaurant & Foods Pvt. Ltd., Pune V. Additional Commissioner of Income-tax,

ITA 1172/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5282 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 01-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E . , , , ' BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AW ASTHY, JM . / ITA NO.1172/PUN/2016 $ $ / ASSESSMENT YEAR : 2011-12 CHIRANJEEV RESTAURANT & FOODS PVT. LTD., D-503, VAN GOUGH BLDG, SALUNKHE VIHAR ROAD, WANAWADI, PUNE 411 048 PAN : AABCC1926B ....... / APPELLANT / V/S. ADDL.TDS RANGE, PUNE / RESPONDENT ASSESSEE BY : SMT. DEEPA KHARE REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 16.07.2018 / DATE OF PRONOUNCEMENT : 16.07.2018 / ORDER PER D. KARUNAKARA RAO, AM: THIS IS THE APPEAL FILED BY ASSESSEE AGAINST THE ORDER OF CIT(A)-10, PUNE, DATED 04-03-2016 FOR THE A.Y. 2011-12. 2. THE SOLITARY GROUND RAISED BY THE ASSESSEE READS AS UNDER : 1. IN VIEW OF THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY O F RS.49,500/- U/S.272A(2)(K)/274 R.W.S. 200(3) OF THE I.T. ACT LE VIED BY THE A.O. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT TH E ASSESSEE FILED ITS RETURN OF TDS U/S.200(3) IN FORM NO.26Q FOR THE IST Q UARTER OF F.Y. 2010-11 ON 22-11-2011 AS AGAINST THE STATUTORY DUE D ATE OF 15-07-2010. THUS, THERE WAS DELAY OF 495 DAYS. AO INVOK ED THE PROVISIONS OF SECTION 272A(2)(K) AND LEVIED PENALTY OF RS.49,500 /- @ 2 ITA NO.1172/PUN/2016 CHIRANJEEV RESTAURANT & FOODS PVT. LTD., RS.100/- FOR EACH DAY OF DELAY AND TREATED THE ASSESSEE AS ASSESSEE-IN- DEFAULT. 4. BEING AGGRIEVED BY THE ORDER OF AO, ASSESSEE FILED AN A PPEAL BEFORE THE CIT(A). THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AND DISCUSSING THE PROVISIONS OF SECTION 273B CO NFIRMED THE PENALTY LEVIED BY THE AO. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE GROUND EXTRACTED ABOVE. 6. AT THE OUTSET, BEFORE US, LD. COUNSEL FOR THE ASSESSE E BROUGHT OUR ATTENTION TO THE GROUNDS AND SUBMITTED THAT THIS IS THE CASE OF LEVY OF PENALTY U/S.272A(2)(K) OF THE ACT AMOUNTING TO RS.49,500/- FOR DELAY OF 495 DAYS IN FILING THE TDS RETURN RELATING TO IST QUARTER . HE SUBMITTED THAT ASSESSEE HAS DULY DEDUCTED AND PAID THE TDS TO THE GOVT. WITHIN THE PRESCRIBED TIME BUT THERE WAS DELAY IN FILING THE RETUR N. GIVING THE REASONS FOR DELAY, ASSESSEE SUBMITTED THAT THE ASSESSEE OUTSOURCED THE ACCOUNTING WORK TO THE TAX CONSULTANT BY NAME MR. KALY AN WABALE. MR. KALYAN WABALE ASSIGNED THE WORK OF THE ASSESSEE TO MR. SANJAY TAPKIR. AT THE RELEVANT POINT OF TIME, THE FATHER OF MR. SANJAY TAP KIR EXPIRED (ON 06-09-2010) AND THEREFORE, THERE WAS DELAY IN FILING THE TDS RETURN. HE SUBMITTED THAT THE DELAY IN FILING THE TDS STATEMENT DOES NOT INVOLVE ANY REVENUE LOSS AND IS MERELY A TECHNICAL DEFAULT. 7. FURTHER ALSO, LD. COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THIS IS A COVERED ISSUE IN FAVOUR OF THE ASSESSEE BY VIRTUE OF DECIS ION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF NAV MAHARASHTRA VIDY ALAYA VS. ADDL.CIT (TDS), RANGE, PUNE AND OTHERS IN ITA NO.832/PN/2 016 & OTHERS, DATED 07-10-2016 FOR THE A.Y. 2011-12 AND SUBM ITTED THAT, THE 3 ITA NO.1172/PUN/2016 CHIRANJEEV RESTAURANT & FOODS PVT. LTD., REASONS FOR DELAY SINCE COMMON, THE SAID DECISION OF THE T RIBUNAL APPLY TO THE FACTS OF THE PRESENT CASE. LD. COUNSEL ALSO FILED T HE COPY OF SAID ORDER OF THE TRIBUNAL. 8. LD. DR FOR THE REVENUE HEAVILY RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 9. WE HEARD BOTH THE SIDES AND PERUSED THE ORDERS OF T HE REVENUE AS WELL AS THE DECISION RELIED ON BY THE LD. COUNSEL FOR THE AS SESSEE ON THE ISSUE UNDER CONSIDERATION. ON PERUSING THE FACTS OF THE C ASE, WE FIND THIS IS A CASE WHERE THE ASSESSEE REMITTED THE TDS IN T IME AND HOWEVER, THERE WAS A DELAY OF 495 DAYS IN FILING THE TDS RETURN FOR IST QUARTER. THERE IS NO DISPUTE ON THE FACT THAT THE ASSESSMENT YE AR UNDER CONSIDERATION IS A.Y. 2011-12. WE ALSO FIND THE REASON STAT ED BY THE ASSESSEE BEFORE THE CIT(A) THAT THE DELAY IN FILING THE TDS RETURN IS DUE TO DEATH OF FATHER OF MR. SANJAY TAKPIR WHO WAS ASSIGNED TO DEAL WITH THE INCOME-TAX MATTERS OF THE ASSESSEE, IS A REASONABLE CAUSE. 9.1 FURTHER, WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF AJA Y NARAYANRAO SAYALKAR VS. JCIT IN ITA NO.715/PUN/2016, DATE D 25-01- 2018 FOR THE A.Y. 2011-12 HAD AN OCCASION TO DECIDE SIMILA R ISSUE AND GRANTED RELIEF TO THE ASSESSEE AS PER THE DISCUSSION GIVE N IN PARA NO.8 OF THE ORDER. WHILE ALLOWING THE APPEAL OF THE ASSESSEE, THE T RIBUNAL FOLLOWED THE CONSOLIDATED ORDER OF THE TRIBUNAL IN THE CAS E OF NAV MAHARASHTRA VIDYALAYA VS. ADDL.CIT (TDS), RANGE, PUNE AND OT HERS IN ITA NO.832/PN/2016 & OTHERS, DATED 07-10-2016 FOR THE A.Y. 2011-12. THEREFORE, WE FIND IT RELEVANT TO EXTRACT THE OPERATIONAL P ARA OF THE TRIBUNAL IN THE CASE OF AJAY NARAYANRAO SAYALKAR VS. JCIT (SUPRA) HERE AS UNDER : 4 ITA NO.1172/PUN/2016 CHIRANJEEV RESTAURANT & FOODS PVT. LTD., 8. THE CASE OF THE ASSESSEE BEFORE US IS THAT THE DELAY IN SUBMISSION OF E-TDS RETURN WAS BECAUSE OF THE PROBLEM OF AWARENESS OF RETURN PREPARATION UTILITY, WHICH WAS UPDATED BY NSDL IN THE FIRST YEAR, I.E. ASSESSMENT YEAR 2011-12. BECAUSE OF THE REQUIREMEN T OF E-TDS FURNISHING OF TDS STATEMENT ARISING FOR THE FIRST TIME IN ASSESSMENT YEAR 2011-12, THERE WERE PROBLEMS FACED BY THE ASSE SSEE AND HENCE, THE DELAY IN FILING QUARTERLY TDS RETURN LATE. WE HOLD THAT THE ASSESSEE HAD REASONABLE CAUSE IN NOT FURNISHING THE SAME IN TIME AND IN VIEW OF THE PROVISIONS OF SECTION 273B OF THE ACT, WE HOLD THAT THE ASSESSEE IS NOT LIABLE TO LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT. HENCE, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE SAM E. WE FIND IT IS NOT THE CASE OF THE REVENUE THAT THE ASSES SEE IS A HABITUAL DEFAULTER IN FILING THE TDS RETURNS LATE. SINCE THE FACTS OF T HE PRESENT CASE ARE SIMILAR TO THE ONE ADJUDICATED BY THE TRIBUNAL, W E HOLD THAT ASSESSEE IS NOT LIABLE TO PENALTY U/S.272A(2)(K) OF THE ACT. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 16 TH DAY OF JULY, 2018. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 16 TH JULY, 2018. SATISH ' ) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-10, PUNE 4. THE PR. CCIT, PUNE 5. , , # , / DR, ITAT, B BENCH, PUNE. 6. & / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.