Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 0750 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 year(s) 14 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
16-05-2019
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
23-07-2013
Assessment Year
2006-2007
Appeal Filed On
02-05-2013
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 138/AGRA/2013 ASSTT. YEAR : 2006-07 D.C.I.T., CIRCLE 3(1), VS. SHRI VINOD KUMAR RATH ORE, GWALIOR. CONTRACTOR (AOP), A.B. ROAD, LAXMI GANJ, GUNA (MP) (PAN : AAFFK 6124 L) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.D. SHARMA, JR. D.R. RESPONDENT BY : SHRI MANUJ SHARMA, ADVOCATE DATE OF HEARING : 23.07.2013 DATE OF PRONOUNCEMENT OF ORDER : 26.07.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR DATED 12.02.2013 FOR THE ASSESSMENT YEAR 20 06-07, CHALLENGING THE CANCELLATION OF PENALTY U/S. 271(1)(C) ON THE ADDIT ION OF RS.14,24,000/- DISALLOWED U/S. 40(A)(IA) OF THE IT ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AO I MPOSED PENALTY U/S. 271(1)(C) OF THE IT ACT. SINCE THE ASSESSEE FAILED TO DEDUCT TAX AT SOURCE IN TIME FROM PAYMENT OF INTEREST AND HAS FAILED TO DEPOSIT THE S AME WITHIN THE TIME ALLOWED U/S. ITA NO. 138/AGRA/2013 2 201 OF THE IT ACT, THE INTEREST OF RS.14,24,000/- P AID TO DIFFERENT PARTIES WAS DISALLOWED U/S. 40(A)(IA) OF THE IT ACT. THE ASSESS EE SUBMITTED BEFORE THE AO THAT HE HAS DEDUCTED TDS BUT DEPOSITED AFTER THE END OF THE FINANCIAL YEAR BECAUSE OF WRONG INTERPRETATION OF THE PROVISION OF THE ACT AN D SO THERE IS NO LOSS OF REVENUE TO THE GOVERNMENT AND THERE IS NO CONCEALMENT OF AN Y INCOME OR TAX. THE LD. CIT(A) CONSIDERING THE APPELLATE ORDER OF HIS PREDE CESSOR FOR PRECEDING ASSESSMENT YEAR 2005-06 DATED 27.10.2009 CANCELING THE PENALTY ON THE SAME MATTER IN ISSUE, CANCELLED THE PENALTY IN THE ASSESSMENT YEAR UNDER APPEAL AS WELL. 3. ON THE LAST DATE OF HEARING, BOTH THE PARTIES WE RE DIRECTED TO FILE COPY OF ORDER OF CIT(A) FOR THE ASSESSMENT YEAR 2005-06 DAT ED 27.10.2009 AS WELL AS INTIMATE WHETHER DEPARTMENT HAS COME UP IN APPEAL B EFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE FILED THE COPY OF THE ORDE R OF LD. CIT(A) DATED 27.10.2009. HOWEVER, BOTH THE PARTIES WERE NOT ABLE TO EXPLAIN WHETHER DEPARTMENT HAS FILED ANY APPEAL BEFORE THE TRIBUNAL AGAINST THIS ORDER O F PRECEDING ASSESSMENT YEAR 2005-06. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON ACCOUNT OF DISALLOWANCE UNDER THE SAME PROVISIONS, PENALTY IS NOT JUSTIFIED AND RELIED UPON FOLLOWING DECISIONS : (I). DECISION OF ITAT, AGRA BENCH IN THE CASE OF RA MENDRA SINGH KUSHWAH (ITA NO. 302/AGR/2012. ITA NO. 138/AGRA/2013 3 (II). DECISION OF ITAT, AGRA BENCH IN THE CASE OF R AMENDRA SINGH KUSHWAH (ITA NO. 77?AGR./2009). (III). DECISION OF ITAT, DELHI BENCH (F) IN THE CS3 E OF NEW HORIZON INDIA LTD. VS. DCIT, 50 SOT 53. (IV). DECISION OF ITAT HYDERABAD BENCH (A) IN THE C ASE OF ACIT VS. MEDVERSITY ON LINE LMT- 145 TTJ 398. (V). DECISION OF ITAT, AGRA BENCH IN THE CASE OF AC IT VS. M/S. KPS BHADORIA IN ITA NO. 192/AGR./2012. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. WE HAVE DIRECTED THE BENCH CLERK, SHRI D.D. BHARDWAJ ATTACHED TO THE TRIBUNAL TO VERIFY FROM RECORD IF DEPARTMENT PREFER RED ANY APPEAL FOR PRECEDING ASSESSMENT YEAR 2005-06 AGAINST THE ORDER OF LD. CI T(A) DATED 27.10.2009. HE HAS INTIMATED THAT THE DEPARTMENT HAS FILED THE APPEAL BEFORE THE TRIBUNAL IN ITA NO. 04/AGRA/2010 FOR THE ASSESSMENT 2005-06 AND THE TRI BUNAL HAS DISMISSED THE DEPARTMENTAL APPEAL VIDE ORDER DATED 18.04.2011. CO PY OF THIS ORDER IS PLACED ON RECORD. 4.1 IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE LD. CIT(A) CANCELLED THE PENALTY FOLLOWING THE ORDER OF HIS PREDECESSOR FOR THE ASSESSMENT YEAR 2005-06 DATED 27.10.2009 IN WHICH O N THE SAME DISALLOWANCE U/S. 40(A)(IA), PENALTY WAS CANCELLED. THE DEPARTMENTAL APPEAL BEFORE THE TRIBUNAL FOR ITA NO. 138/AGRA/2013 4 PRECEDING ASSESSMENT YEAR 2005-06 HAS ALREADY BEEN DISMISSED AS NOTED ABOVE. THEREFORE, FOLLOWING THE ORDER OF PRECEDING ASSESSM ENT YEAR, WE DISMISS THE DEPARTMENTAL APPEAL BECAUSE THE RULE OF CONSISTENCY REQUIRES THAT THE SAME ORDER ON IDENTICAL FACTS SHALL HAVE TO BE FOLLOWED. THE DEPA RTMENTAL APPEAL FAILS AND IS DISMISSED. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY
