Ganesh Housing Corporation Limited, Ahmedabad V. The Addl.CIT, TDS Circle, Ahmedabad

ITA 1196/AHD/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3044 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 18-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BHAVESH SHAH ARS
• Keywords: Reasonable cause; TDS
• Section: 273B

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO. 1196/AHD/2019 ( / ASSESSMENT YEAR: 2013-14) GANESH HOUSING CORPORATION LTD., 100 FT. HEBATPUR, THALTEJ ROAD, NR. SOLA BRIDGE, OFF. S. G. HIGHWAY, AHMEDABAD-380054 / VS. ADCIT(TDS CIRCLE) 2 ND FLOOR, AMRUTJAYANTI BHAVAN, NAVJIVAN TRUST BUILDING, OFF. ASHRAM ROAD, AHMEDABAD- 380009 ./ ./PAN/GIR NO. : AAACG5590Q ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI DHIREN SHAH & SHRI BHAVESH SHAH, ARS. / RESPONDENT BY: SHRI PURUSHOTTAM KUMAR, SR. DR !' /DATE OF HEARING 12/10/2021 #$!' / DATE OF PRONOUNCEMENT 22/10/2021 %& /O R D E R PER AMARJIT SINGH - AM: THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2013-14, ARISE FROM ORDER OF THE CIT(A) 8, AHMEDABAD DATED 31.05.2019, IN PROCEEDING S UNDER SECTION 272A(2)(G) OF THE INCOME TAX ACT, 1961; IN SHORT TH E ACT. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL. HE OUGHT TO HAVE ALLOWED THE APPEAL FULLY IN ACCORDANC E WITH THE GROUNDS OF APPEAL RAISED BY THE APPELLANT COMPANY BEFORE HIM. I. LEVY OF PENALTY U/S. 271A(2)(G) OF THE ACT RS. 19 ,700/- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY LEVIED U/S. 272A(2)(G) OF THE ACT OF RS. 19,700/-. ITA NO. 1196/AHD/2019(GANESH HOUSING CORPORATION LTD. VS. ADCIT) A.Y. 2013-14 2 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN FAILING TO CONSIDER THAT THE APPELLANT COMPANY HAS PAID THE TDS FOR THE PERIOD FROM NOVEM BER 2012 TO JANUARY 2013 IN SINGLE INSTALLMENT ON 02.02.2013 OF RS.97,80,030/- WHICH INCLUDES INTEREST AND HAS ALSO TDS RETURN IMMEDIATELY AND HAS ISSUED THE TDS CERTIFICATES WI THIN 15 DAYS FROM THE DATE OF FILING OF TDS RETURN. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN FAILING TO CONSIDER THAT THE PENALTY U/S.272A(2)(G) IS DISCRETIONARY AND IS SUBJECT TO PROVISION OF SECTION 273B AND IT PROVIDES THAT IF THERE WAS A REASONABLE CAUSE IN ISSUING THE CER TIFICATE LATE, THE PENALTY U/S 272A(2)(G) WILL NOT BE ATTRACTED. 4. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN FAILING TO PROPERLY CONSIDER APPELLANT COMPANY'S SUBMISSION AS WELL AS VARIOUS JUDICIAL P RONOUNCEMENTS RELIED UPON BY THE APPELLANT. THE APPELLANT RESERVES ITS RIGHT TO ADD, AMEND, AL TER OR MODIFY ANY OF THE GROUNDS STATED HEREINABOVE EITHER BEFORE OR AT THE TIME OF HEARIN G. 2. ALL THE GROUNDS OF APPEAL ARE INTERLINKED, THERE FORE, FOR THE SAKE OF CONVENIENCE ALL THESE GROUNDS OF APPEAL ARE ADJUDIC ATED TOGETHER. 3. IN THIS CASE ORDER UNDER SECTION 272A(2)(G) OF T HE ACT WAS PASSED BY THE ADDITIONAL COMMISSIONER (TDS) ON 18.06.2018 HOLDING THAT THE ASSESSEE COMPANY HAD FAILED IN COMPLIANCE OF TDS PROVISION BY NOT FIL ING DUE QUARTERLY RETURN WITHIN THE DUE DATE NOR FURNISHED CERTIFICATE AS REQUIRED UNDER SECTION 203 OF THE ACT. THEREFORE, IN VIEW OF THE PROVISION OF SECTION 271A( 2)(G) OF THE ACT THE ADDITIONAL COMMISSIONER OF INCOME TAX (TDS) HAS LEVIED PENALTY A T THE RATE OF RS. 100 PER DAY TOTALLING THE RS. 19,700/- FOR DEFAULT OF NON I SSUANCE OF CERTIFICATE IN TIME. THE ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). TH E LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 4. DURING THE COURSE OF APPELLATE PROCEEDING BEFORE US LD. COUNSEL HAS CONTENDED THAT BECAUSE OF FINANCIAL CRISIS ASSESSEE HAS DEPOSITED THE TDS LATE AND TDS RETURN WAS ALSO FILED LATE WHICH WAS RESULTED IN DELAY IN ISSUE OF TDS CERTIFICATE. IN SUPPORT OF CONTENTION OF THE ASSES SEE OF FINANCIAL CRISIS, THE LD. COUNSEL HAS PLACED IN THE PAPER BOOK THE COPIES OF BANK STATEMENT SHOWING THAT AMOUNT WAS BORROWED FROM BANK FOR DEPOSITING OF TDS AMOUNT. THE LD. COUNSEL HAS ALSO SUBMITTED THAT IT WAS SPECIFICALLY BROUGHT TO THE NOTICE OF THE AO AND CIT(A) THAT BECAUSE OF FINANCIAL CRISIS THE TDS WAS DEPOSITED LATE, THEREFORE, THERE ITA NO. 1196/AHD/2019(GANESH HOUSING CORPORATION LTD. VS. ADCIT) A.Y. 2013-14 3 WAS DELAY IN ISSUE OF THE TDS CERTIFICATE BUT THE CO NTENTION OF THE ASSESSEE WAS NOT CONSIDERED BY THE REVENUE AUTHORITIES. THE ASSESSEE HAS FILED A PAPER BOOK COMPRISING DETAIL AND COPIES OF DOCUMENT SUBMITTED BEFORE THE LOWER AUTHORITIES. THE LD. COUNSEL HAS ALSO SUBMITTED THAT THERE IS A N O LOSS OR INCONVENIENCE TO THE DEDUCTEE WHOSE TAX WAS DEDUCTED AS TDS CERTIFICATE WERE ISSUED BEFORE THE DUE DATE OF FILING OF THEIR INCOME TAX RETURN. 5. ON THE OTHER HAND, THE LD. DR HAS SUPPORTED THE O RDER OF LD. CIT(A). 6. HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MA TERIALS AVAILABLE ON RECORD. THE ASSESSEE COMPANY HAS PAID THE TDS AMOUNT ALONG W ITH INTEREST ON 20.03.2013. THE ASSESSEE HAS MADE PAYMENT OF TDS ALONG WITH INTER EST PAYABLE FOR THE PERIOD FROM NOVEMBER 2012 TO JANUARY 2013 BY A SINGLE INST ALMENT ON 20.02.2013 OF RS. 97,80,030/-. THE ASSESSEE SUBMITTED THAT DELAY IN DEPOSITING OF TDS AMOUNT AND LATE ISSUING OF TDS CERTIFICATES TO DEDUCTEE OCCURRE D DUE TO FINANCIAL CRISIS. EVEN DURING THE COURSE OF PENALTY LEVIED UNDER SECTION 2 71H THE ASSESSEE HAS BROUGHT THIS FACT BEFORE THE LD. CIT(A) THAT BECAUSE OF FINAN CIAL CRISIS IN REAL ESTATE SECTOR IT COULD NOT MAKE COMPLIANCE IN TIMELY DEPOSITING O F TDS. IN THE CASE OF THE ASSESSEE THE PENALTY LEVIED UNDER SECTION 271H OF T HE ACT WAS ALREADY DELETED. THE LD. COUNSEL HAS ALSO REFERRED THE DECISION OF TH E HONBLE HIGH COURT OF GUJARAT IN THE CASE OF CIT VS. LABH CONSTRUCTION & IN D. LTD. (2015) 62 TAXMANN.COM 235 (GUJARAT). THE ASSESSEE HAS ALSO RE FERRED THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT (TDS) V S. JYOTI POWER CORPORATION (P) LTD. (2018) 92 TAXMANN.COM 307 (GUJARAT) WHEREIN IT IS HELD THAT SINCE THE ASSESSEE HAD DEPOSITED TAX DEDUCTED ALONG WITH INTE REST AND FULLY EXPLAIN THE REASON FOR LATE DEPOSIT OF SUCH AMOUNT DURING THE C OURSE OF PENALTY PROCEEDING WHICH WAS NEITHER CONTROVERTED OR FOUND TO BE FALSE BY THE JCIT, PROVISION OF SECTION 273B WOULD BE ATTRACTED AND NO PENALTY COUL D BE LEVIED UPON ASSESSEE. THE ASSESSEE HAS DEMONSTRATED FROM THE MATERIAL PLA CED ON RECORD THAT BECAUSE OF FINANCIAL CRISIS THERE WAS DELAY IN DEPO SITING TDS, THEREFORE, TDS ITA NO. 1196/AHD/2019(GANESH HOUSING CORPORATION LTD. VS. ADCIT) A.Y. 2013-14 4 RETURN FILED LATE WHICH RESULTED IN ISSUING TDS CERT IFICATE LATE. THE ASSESSEE HAS ATTACHED COPY OF INCOME TAX RETURN, COPY OF BANK STA TEMENT OF TAMIL MERCANTILE COOPERATIVE BANK, HDFC BANK SHOWING BORROWING OF AM OUNT ON 18.02.2013 FOR PAYMENT OF TDS ON 20.03.2013. THE ASSESSEE HAS ALS O SUBMITTED BEFORE THE AO AND LD. CIT(A) THAT THERE WAS FINANCIAL CRISIS IN TH E CASE OF THE ASSESSEE COMPANY DUE TO WHICH TDS WAS DEPOSITED LATE. IN THIS REGAR D, WE OBSERVE THAT NEITHER THE AO NOR THE LD. CIT(A) HAS CONTROVERTED NOR DISPROVE THE CONTENTION OF THE ASSESSEE THAT THERE WAS FINANCIAL CRISIS, THEREFORE , WE CONSIDER THAT THE CASE OF THE ASSESSEE IS COVERED BY THE PROVISION OF SECTION 273 B OF THE ACT AS IT HAD SUBMITTED AN EXPLANATION WHICH FOUND TO BE REASONABLE AND THE SAME HAS NOT BEEN DISPROVED BY THE LOWER AUTHORITIES. THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. SD/- SD/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNT ANT MEMBER AHMEDABAD: DATED 22/10/2021 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. % / ASSESSEE 3. + ,! -! / CONCERNED CIT 4. -!- / CIT (A) 5. 123 ! ,, ' ,, 56%+% / DR, ITAT, AHMEDABAD 6. 38 9 / GUARD FILE. BY ORDER / %& , :/5 ' ,,56%+% < 1.DATE OF DICTATION ON 21.10.2021 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 22.10.2021 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 22.10.2021 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .10.2021 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR . P.S./P.S 25.10.2021 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.10.2021 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER THIS ORDER PRONOUNCED IN OPEN COURT ON 22/10/2021