Suvichar Medical & General Stores, Nashik V. Income-tax Officer,

ITA 1298/PUN/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5227 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 13-12-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 13-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K J KAWADE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO , AM . / ITA NO. 1298 /P U N/201 6 / ASSESSMENT YEAR : 20 1 1 - 1 2 SUVICHAR MEDICAL & GENERAL STORES 858/859, GANESH BABA NAGAR, SUVICHAR HOSPITAL, NASHIK 422011 . / APPELLANT P AN: ABGFS1351K VS. THE INCOME TAX OFFICER(TDS) - II , NASHIK . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI K.J. KAWADE / DATE OF HEARING : 1 3 . 12 .201 8 / DATE OF PRONOUNCEMENT: 06 . 0 2 .20 1 9 / ORDER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 3 , NASHIK , DATED 1 2 . 0 4 .20 1 6 RELATING TO ASSESSMENT YEAR 20 1 1 - 1 2 AGAINST PENALTY LEVIED UNDER SECTION 272A(2)(K) R.W.S. 200(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL: - 1. WHETHER THE CIT(A) - 3, NASHIK WAS JUSTIFIED IN UPHOLDING THE PENALTY LEVIED BY ITO, TDS, NASHIK U/S 272A(2)(K) R.W.S. 200(3) OF THE ACT. ITA NO. 1298 /P U N/20 1 6 SUVICHAR MEDICAL & GENERAL STORES 2 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF ASSESSEE NOR ANY APPLICATION WAS FILED FOR ADJOURNMENT. HOWEVER, BECAUSE OF THE ISSUE INVOLVED, WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 4. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT AT 58,500 / - . 5 . BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FURNISHED QUARTERLY TDS RETURNS IN FORM NO.26Q AFTER THE TIME LIMIT PRESCRIBED UNDER SECTION 200(3) OF THE ACT FOR ALL THE QUARTERS OF FINANCIAL YEAR. THE ASSESSING OFFICER HELD THE ASSESSEE TO BE IN DEFAULT AND LEVIED PENALTY OF 58,50 0/ - . THE PLEA OF ASSESSEE BEFORE THE CIT(A) THAT IT HAD DEDUCTED TAXES AND PAID THE SAME BUT COULD NOT FILE THE TDS R ETURNS BECAUSE OF UNAWARENESS OF LAW AND HENCE, THERE WAS NO MALAFIDE INTENTION IN NOT FILING THE SAID RETURNS WITHIN TIME, WAS NOT ACCEPTED BY THE CIT(A) AND PENALTY LEVIED WAS UPHELD. 6 . THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A) . 7 . THE LEA RNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ISSUE STANDS SQUARELY COVERED AGAINST THE ASSESSEE BY THE ORDER OF PUNE BENCH OF TRIBUNAL IN SERIES OF CASES WITH LEAD ORDER IN NAV MAHARASHTRA VIDYALAYA VS. ADDL.CIT(TDS) IN ITA NO.832/ PN/2016, RELATING TO ASSESSMENT YEAR 2011 - 12, ORDER DATED 07.10.2016. ITA NO. 1298 /P U N/20 1 6 SUVICHAR MEDICAL & GENERAL STORES 3 8 . ON PERUSAL OF RECORD AND AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, WE FIND THAT THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST LEVY OF PENALTY U NDER SECTION 272A(2)(K) OF THE ACT. 9 . WE FIND THAT SIMILAR ISSUE HAS BEEN DECIDED BY THE PUNE BENCH OF TRIBUNAL IN BUNCH OF APPEALS WITH LEAD ORDER IN NAV MAHARASHTRA VIDYALAYA VS. ADDL.CIT(TDS) (SUPRA), WHEREIN THE TRIBUNAL HELD THAT IF THERE IS REASONA BLE CAUSE FOR THE DEFAULT, THEN PENALTY IS NOT TO BE LEVIED. WHERE THE ASSESSEE HAD DEFAULTED IN NOT DEPOSITING THE TAX DEDUCTED AT SOURCE IN TIME, THEN IN SUCH CASES, THE RETURNS WERE DELAYED AND PENALTY UNDER SECTION 272A(2)(K) OF THE ACT IS LEVIABLE; H OWEVER, THE SAME IS TO BE RESTRICTED FROM THE DATE OF PAYMENT 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 GOVERNMENT. SIMILAR RATIO HAS BEEN LAID DOWN BY THE CHANDIGARH BENCH OF TRIBUNAL IN M/S. ASHIRWAD COMPLEX VS. JCIT (TDS) IN ITA NO.895/CHD/2013, RELATING TO ASSESSMENT YEAR 2010 - 11, ORDER DATED 22.11.2013. THE ASSESSING OFFICER IS THUS, DIRECTED TO RESTRICT LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF T HE ACT IN LINE WITH OUR DIRECTIONS IN EARLIER ORDER. THE ASSESSEE IS DIRECTED TO FURNISH COMPLETE DETAILS BEFORE THE ASSESSING OFFICER IN THIS REGARD. THUS, THE GROUND OF APPEAL RAISED BY ASSESSEE IS PARTLY ALLOWED. 10 . IN THE RESULT, THE APPEAL OF ASSE SSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 6 TH DAY OF FEBRUARY , 201 9 . SD/ - SD/ - ( D.KARUNAKARA RAO ) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 6 TH FEBRUARY , 201 9 . GCVSR ITA NO. 1298 /P U N/20 1 6 SUVICHAR MEDICAL & GENERAL STORES 4 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 3 , NASHIK ; 4. THE CI T - TDS , PUNE ; 5. 6. , , / DR A , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE