Tahasildar, Pune V. Additional Commissioner of Income-tax,

ITA 1258/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1017 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-08-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 10-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reasonable cause
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , . . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NO S . 1 257 & 1 258 /PN/20 1 4 / ASSESSMENT YEAR S : 20 04 - 05 & 20 05 - 06 THE TAHASILDAR, BHOR, DIST. PUNE . / APPELLANT VS. THE ADDL. COMMISSIONER OF INCOME TAX, RANGE - 11, PUNE . / RESPONDENT / APPELLANT BY : NONE / RESPOND ENT BY : SHRI SUHAS KULKARNI / DATE OF HEARING : 3 1 .0 8 .201 6 / DATE OF PRONOUNCEMENT: 31 . 0 8 .201 6 / ORDER PER SUSHMA CHOWLA, JM: PER SUSHMA CHOWLA, JM: BOTH THE APP EAL S FILED BY THE ASSESSEE ARE AGAINST SEPARATE ORDER S OF CIT (A) - I , PUNE , BOTH DATED 31 . 12 .201 3 RELATING TO ASSESSMENT YEAR S 20 04 - 05 AND 20 05 - 06 AGAINST PENALTY LEVIED UNDER SECTION S 272A(2)(C) & 272A(2)(K) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . ITA NO S. 1 257 & 1 258 /PN/201 4 TAHASILDAR, BHOR 2 2. BOTH THE APPEALS RELATING TO THE SAME ASSESSEE ON IDENTICAL ISSUE S WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3 . THE ASSESSEE IN ITA NO. 1 257 /PN/201 4 RELATING TO ASSESSMENT YEAR 2004 - 05 HAS RA ISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THE LEARNED COMMISSIONER (APPEALS) ERRED IN SUSTAINING PENALTY OF RS.42,700/ - U/S 272A(2)(C) OF THE INCOME TAX ACT. 2. THE PENALTY LEVIED AS ABOVE BE CANCELLED. 3. SUCH OTHER ORDERS BE PASSED AS DEEMED FIT AND PROPER. 4. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST LEVY OF PENALTY UNDER SECTION 272A(2)(C) OF THE ACT AT RS.42,700/ - . 5. THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING ON 27.04.2016, FOR WHICH NOTICE WAS SENT TO THE PARTY. HOWEVER, NONE AP PEARED ON BEHALF OF THE ASSESSEE. THEREAFTER, THE APPEAL WAS FIXED FOR HEARING ON 29.06.2016 AND 31.08.2016 . O N NONE OF THE DATES, THERE WAS ANY REPRESENTATION BY THE ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. IN VIEW THEREOF, APPEAL IS BEI NG DECIDED AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT PENALTY UNDER SECTION 272A(2)(C) OF THE ACT WAS LEVIED SINCE THE TAHSILDAR AFTER COLLECTING THE T AX DEDUCTED AT SOURCE UNDER THE PROVISIONS OF SECTION 206C(1C) OF THE ACT HAD NOT FILED TCS RETURN FOR THE FINANCIAL YEAR 2004 - 05. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE FURTHER POINTED OUT THAT DESPITE SHOW CAUSE NOTICE ISSUED BY THE ASS ESSING OFFICER, THE ASSESSEE TILL DATE HAS NOT FURNISHED TCS RETURN. IN THIS REGARD, A COMMUNICATION FROM THE ASSESSING OFFICER DATED 03.06.2016 WAS FILED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE THAT THE TCS RETURN FOR ASSESSMENT YEARS 2004 - 05 AND 2005 - 06 HAVE NOT ITA NO S. 1 257 & 1 258 /PN/201 4 TAHASILDAR, BHOR 3 BEEN FILED UP TO DATE, HENCE, PENALTY NEEDS TO BE CONFIRMED IN THE HANDS OF ASSESSEE. 7. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSING OFFICER HAD ISSUED A LETTER TO THE ASSESSEE TO FURNISH THE INFORMATION IN RESPECT OF TAX COLLECTED AT SOURCE FOR THE WORK ALLOTTED TO THE QUARRY HOLDERS AND THEIR NAMES AND ADDRESSES FOR THE FINANCIAL YEAR 2004 - 05 AND INQUIRY WAS CONDUCTED WITH TAHSILDAR, BHOR TO VERIFY WHETHER THEY HAD COLLECTED TAX AT SOURCE UNDER THE PROVISIONS OF SECTION 206C(1C) OF THE ACT. THE SAID INFORMATION WAS CALLED FOR UNDER SECTION 133(6) OF THE ACT. IN RESPONSE THERETO, THE ASSESSEE FURNISHED INFORMATION I.E. LIST OF PERSONS TO WHOM THE QUARRY WORK WAS ALLOTTED AND THE AMOUNT OF ROYALTY COLLECTED FROM THEM FOR THE PERIOD 01.10.2004 TO 31.03.2005 AND 01.04.2005 TO 31.12.2005. THE TCS ON THIS ROYALTY WAS NOT COLLECTED. THE TAHSILDAR, BHOR ATTENDED THE PROCEEDINGS BEFORE THE ASSESSING OFFICER AND DISCUSSED THE CASE AND GAVE INSTRUCTIONS IN WRITING TO TALATHI FOR COLLECTION OF TAXES. HE FURTHER STATED THAT TCS RETURN WOULD BE FILED FOR TALATHI FOR COLLECTION OF TAXES. HE FURTHER STATED THAT TCS RETURN WOULD BE FILED FOR FINANCIAL YEAR 2004 - 05 . THE ASSESSING OFFICER HOWEVER, NOTES THAT HE HAD FAILED TO FILE TCS TILL 14.02.2006. THE ASSESSING OFFICER IN THIS REGARD ISSUED A PROPOSAL FOR INITIATING PENALTY FOR DEFAULT FOR NON - FILING THE ANNUAL RETURN UNDER SECTION 272A(2)(C) OF THE ACT . AS PER PROVISIONS OF THE SAID SECTION, WHERE ANY PERSON FAILS TO FURNISH IN DUE TIME ANY RETURN, STATEMENT OR PARTICULARS MENTIONED IN SECTION 133 OR SECTION 206 OR SECTION 285B OF THE ACT, SUCH PERSON SHALL BE LIABLE TO PAY BY WAY OF PENALTY @ RS.100/ - PER DAY TILL THE DEFAULT CONTINUES. THE ASSESSING OFFICER FURTHER ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY PENALTY SHOULD NOT BE LEVIED FOR THE SAID DEFAULT S. IN RESPONSE TO THE SAID SHOW CAUSE NOTICE, THE ASSESSEE VIDE LETTER DATED 10.08.2006 HAD SUBMITTED THAT AS PER OFFICE RECORDS, SUM OF RS. 85,190/ - HAD BEEN DEPOSITED AS TCS COLLECTED. THE COPY OF CHALLAN WAS ENCLOSED AND IT WAS PROPOSED THAT THE BALANC E AMOUNT NOT COLLECTED WOULD BE COLLECTED AND PAID SOON. HOWEVER, THERE WAS NO MENTION ABOUT FILING OF TCS ITA NO S. 1 257 & 1 258 /PN/201 4 TAHASILDAR, BHOR 4 RETURN. THE ASSESSEE HAD FAILED TO BRING ON RECORD ANY REASONS FOR NOT FILING TCS RETURN AND HENCE, HE WAS HELD TO BE LIABLE FOR PENALTY UNDER SECT ION 272A(2)(C) OF THE ACT AT RS.42,700/ - FOR DEFAULT OF 427 DAYS. 8. BEFORE THE CIT(A), THERE WAS TOTAL NON - COMPLIANCE BY THE ASSESSEE. IN RESPONSE TO MORE THAN 20 NOTICES ISSUED TO THE ASSESSEE WHICH ARE ENLISTED UNDER PARA 3.2 OF THE APPELLATE ORDER , N ONE ATTENDED NOR THE ASSESSEE FILED ANY WRITTEN SUBMISSIONS TILL THE DATE OF FINALIZATION OF THE ORDER OF CIT(A). HENCE, PENALTY LEVIED UNDER SECTION 272A(2)(C) OF THE ACT AT RS.42,700/ - WAS CONFIRMED BY THE CIT(A). 9. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). HOWEVER, DESPITE SEVERAL NOTICES ISSUED TO THE ASSESSEE, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. 10. ON PERUSAL OF RECORD AND THE ABOVE SAID COMMUNICATION RECEIVED FROM THE ASSESSING OFFICER, WHERE THE ASSESSEE HAS DEFAULTED IN COMPLYING WITH THE PROVISIONS OF THE ACT I.E. WHERE AFTER COLLECTION OF TCS, IT WAS THE REQUIREMENT OF THE ACT TO FURNISH QUARTERLY STATEMENT / ANNUAL RETURN FOR SUCH COLLECTION OF TCS AND THE ASSESSEE ADMITTEDL Y, HAS NOT FURNISHED ANY SUCH RETURN; HENCE THE ASSESSEE IS LIABLE FOR LEVY OF PENALTY UNDER SECTION 272A(2)(C) OF THE ACT. IN THE FACTS OF THE PRESENT CASE, IT MAY BE BROUGHT ON RECORD THAT THE ASSESSEE HAS FAILED TO DEPOSIT COMPLETE TCS OF TAX COLLECTED . FURTHER, THE ASSESSEE HAS FAILED TO POINT OUT THE REASONABLE CAUSE FOR NOT FILING THE SAID RETURN IN TIME AND HENCE, PENALTY LEVIED UNDER SECTION 272A(2)(C) OF THE ACT IS CONFIRMED. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, DISMISSED. 1 1 . IN ITA NO.1258/PN/2014, THE ISSUE IS AGAINST LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT RELATING TO ASSESSMENT YEAR 2005 - 06. ITA NO S. 1 257 & 1 258 /PN/201 4 TAHASILDAR, BHOR 5 1 2 . THE FACTS AND CIRCUMSTANCES OF THE CASE ARE IDENTICAL WITH REGARD TO LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT IN ITA NO.1257/PN/2014 AND FOLLOWING THE SAME PARITY OF REASONING, WE DISMISS THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. 1 3 . IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF AUGUST , 201 6 . SD/ - SD/ - ( R.K. PANDA ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; D ATED : 31 ST AUGUST , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I , PUNE ; 4. / THE CIT - I, PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE