ITO, New Delhi V. M/s. Jubilee Sports India Technology Pvt. Ltd., New Delhi

ITA 1409/DEL/2013

• Counselvise Citation: 140920114 RSA 2013
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 28-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 08-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAMKAUNJM A
• Keywords: Reasonable cause
• Section: 273B; 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI I.C. SUDHIR AND SHRI. PRAMOD KUMAR ITA NO. 1409/DEL/2013 ASST. YR: 2008- 09 ITA NO. 1410/DEL/2013 ASST. YR: 2011-12 ITA NO.1415/DEL/2013 ASST. YR: 2010-11 INCOME-TAX OFFICER, VS. JUBILEE SPORTS INDIA WARD 50(2), TECHNOLOGY PVT. LTD., NEW DELHI. S-518, LOWER GROUND FLOOR, GR. KAILASH, PART-I, NEW DELHI. (PAN: DELJO6663G) (APPELLANT) (RESPONDENT) REVENUE BY: SHRI P. DAMKAUNJM A, SR. DR ASSESSEE BY: SHRI SANJ AY JAIN, CA DATE OF HEARING : 28.01.2015 DATE OF PRONOUNCEMENT: 31:03.2015 ORDER PER I.C. SUDHIR: JUDICIAL MEMBER THE REVENUE HAS QUESTIONED FIRST APPELLATE ORDER O N THE FOLLOWING COMMON GROUND: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT(APPEALS) HAS ERRED IN: (I) RESTRICTING THE PENALTY IMPOSED U/S.272A(K) OF RS.2 0,50,700 TO RS.6,37,800 RELYING ON THE DECISION OF HON'BLE RAJA STHAN HIGH COURT IN THE CASE OF CIT VS. SUPERINTENDENT ENGINEE R (260 ITR 641), WHEREIN THE ASSESSEE HAS DEDUCTED THE TAX AND MADE THE PAYMENT INTO GOVT. ACCOUNT IN TIME. IN THIS CASE, T HE ASSESSEE 2 HAS NOT DEPOSITED THE TAX IN SOME CASES. THEREFORE, THE FACTS OF THE CASE ARE DIFFERENT FROM THE CASE OF HON'BLE RAJ ASTHAN HIGH COURT. FURTHER, THE AR OF THE ASSESSEE ALREADY ACCE PTED BEFORE THE LEARNED CIT(APPEALS) THAT THE PENALTY SHOULD HA VE BEEN LIMITED TO RS.13,95,034. 2. HEARD AND CONSIDERED THE ARGUMENTS ADVANCED BY THE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW, MATERIAL AVAILA BLE ON RECORD AND THE DECISIONS RELIED UPON. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN PROVIDING SPORTS INFRA-STRUCTURE TO VARIOUS GOVERNM ENTS AND NON-GOVERNMENT CLIENTS. DURING THE FINANCIAL YEARS 2008-09 TO 2010 -11, THE ASSESSEE HAD UNDERTAKEN CERTAIN PROJECTS OF COMMON WEALTH GAMES. IN THE ASSESSMENT YEARS UNDER CONSIDERATION I.E. ASSESSMENT YEARS 200 8-09, 2010-11 AND 2011- 12, THE ASSESSING OFFICER HAD IMPOSED A PENALTY OF RS.20,50,700 UNDER SEC. 272A(2)(K)/274 OF THE INCOME-TAX ACT, 1961 FOR DELA Y IN FILING STATEMENTS OF DIFFERENT QUARTERS FOR THE FINANCIAL YEARS RELEVANT TO THE ASSESSMENT YEARS UNDER CONSIDERATION. THE LEARNED CIT(APPEALS) HAS D ELETED THE PENALTY WHICH HAS BEEN QUESTIONED BY THE REVENUE BEFORE THE ITAT. 3 4. IN SUPPORT OF THE GROUND, THE LEARNED SR.DR HAS PLACED RELIANCE ON PENALTY ORDER. HE SUBMITTED THAT THE DECISION OF HO N'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. SUPERINTENDENT ENGINEE R 260 ITR 641 (RAJ.) IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE AS IN TH AT CASE THE ASSESSEE HAD DEDUCTED THE TAX AND MADE THE PAYMENT INTO GOVERNME NT ACCOUNT IN TIME, WHEREAS IN THE PRESENT CASE, ASSESSEE HAD NOT DEPOS ITED THE TAX IN SOME CASES. 5. THE LEARNED AR ON THE OTHER HAND PLACED RELIANCE ON THE FIRST APPELLATE ORDER. HE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND CITED DECISIONS RELIED UPON BY HIM BEFORE THE LEARNED CIT(APPEALS). THE LEARNED AR SUBMITTED THAT TAX DEF AULT ON THE DATE OF IMPOSITION OF PENALTY WAS AT RS.6,37,800 AND PAYMEN T OF THE ASSESSEE FROM DDA, UNITY INFRA PROJECTS WERE BUILD UP TO THE TUNE OF RS.4,50,00,000 AND THUS THERE WERE GENUINE REASONS TO PREVENT THE ASSE SSEE FROM PAYING THE TAX DEDUCTED AT SOURCE IN TIME. MOREOVER AS SOON AS THE ASSESSEE COULD ARRANGE THE FUNDS HAD DEPOSITED THE TAX TO THE GOVERNMENT A UTHORITIES. HE SUBMITTED THAT IT IS NOT THE CASE OF THE ASSESSEE THAT THE AS SESSEE HAD DEDUCTED THE TAX AND NOT DEPOSITED IN THE GOVERNMENT TREASURE. 6. HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW, WE FIND THAT THE LEARNED CIT(APPEALS) AFTER DISCUSSING THE ISSUE IN DETAIL, HAS DELETED THE 4 PENALTY VIDE PARA NO.5 OF THE COMMON FIRST APPELLAT E ORDER FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION: 5. I HAVE PERUSED THE ASSESSMENT ORDER, GROUNDS OF APPEALS, WRITTEN SUBMISSIONS AND DISCUSSED THE MATTER WITH T HE AR OF THE ASSESSEE VERY CAREFULLY. THE APPELLANT IS A CONTRAC TOR IN MAKING INFRASTRUCTURE FACILITIES FOR CPWD, DELHI GOVT. AND PRIVATE PARTIES FOR COMMONWEALTH GAMES LIKE STADIUM, BUILDING INFRASTRU CTURE IN THIS FINANCIAL YEAR. THE ADDL. CIT, RANGE-50, HAD IMPOSE D PENALTY U/S. 272A(2)(K)/274 ON 24.08.12 OF RS.20,50,700 FOR DELA Y IN FILING STATEMENTS FOR DIFFERENT QUARTERS FOR A.Y. 07-08, 0 9-10 & 10-11. THERE WAS A SURVEY U/S. 133A OF THE INCOME-TAX ACT, 1961 IN THE APPELLANTS BUSINESS PREMISES IN OCTOBER, 2010 AFTER WHICH THE TDS ASSESSMENT HAS BEEN MADE. IN SEC. 200(3) PROVISION THERE IS A CLAUSE THAT PENALTY AMOUNT SHOULD BE RESTRICTED TO THE AMOUNT OF TAX DE FAULT ON THE DATE OF IMPOSITION OF PENALTY. THE AR ARGUED THAT IN THIS C ASE, THE PENALTY SHOULD HAVE BEEN LIMITED TO RS.13,95,034 WHICH WAS CALCULATED BY HIM IN THE CHART WHICH IS ENCLOSED TO THIS ORDER. T HE ARS ARGUED THAT THE ADDL. CIT HAS IMPOSED PENALTY FOR FULL PERIOD O F DEFAULT WITHOUT CONSIDERING THE AMOUNT OF TAX (TDS) PAID BY THE APP ELLANT. THE AR FURTHER ARGUED THAT AS PER THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. SUPERINTENDENT ENGINEE R (260 ITR 641, IF THE APPELLANT HAD COLLECTED AND PAID THE TAX TO THE GOVERNMENT OF INDIA BUT HAD NOT FILED STATEMENTS BEFORE THE DEPAR TMENT THEN THE PENALTY NEED NOT BE IMPOSED ON THE APPELLANT. CONSI DERING THIS JUDGMENT THE AR MADE A CALCULATION OF TAX DEFAULT O N THE DATE OF PENALTY IMPOSITION AT RS.6,37,800. THE AR FURTHER A RGUED THAT NO 5 NOTICE U/S. 274 BEFORE IMPOSING THE PENALTY WAS GIV EN TO THE APPELLANT. HE HAS ALSO EMPHASIS THAT THERE IS A REASONABLE CAU SE U/S. 273B OF THE INCOME-TAX ACT, 1961 WHERE THERE ARE GROUNDS WHICH PREVENTED THE ASSESSEE TO FILE THE STATEMENTS BEFORE THE A.O., NO PENALTY CAN BE IMPOSED. IN THE APPELLANTS CASE, THE DEPARTMENT UN DER COMPUTATION OF TDS, PROCESSING OF STATEMENTS AND THE APPELLANT HAD NO SUCH TECHNICAL QUALIFIED MANPOWER TO DO THE WORK IN TIME. SECONDLY , THE APPELLANT HAD TAKEN THE WORK OF COMMONWEALTH GAMES THROUGH CP WD WHERE HE HAS TO RUSH TO THE WORK FOR COMPLETION OF THE IN FRASTRUCTURE IN TIME SO THAT THERE SHOULD BE PROPER PERFORMANCE OF THE G OVERNMENT BEFORE THE INTERNATIONAL COMMUNITY AND THIRDLY, THE BALANC E PENDING IN THE LEDGER OF THE APPELLANT AS ON DATE IS OF RS.4,50,00 ,000 FOR WHICH HE COULD NOT PAY THE TAX IN TIME TO GOVERNMENT THROUGH TDS. THE AR ARGUED VEHEMENTLY TO REDUCE THE DEMAND TO NIL U/S. 201(1)/201(1)(A) OF THE IT ACT. CONSIDERING THE APP ELLANTS GROUND FOR REASONABLE CAUSE AND OTHER FACTORS INVOLVED, I DEEM IT PROPER TO CHARGE PENALTY U/S. 271A(2)(K)/274 OF RS.6,37,800 F OR NON FILING OF STATEMENTS IN TIME. THE APPELLANT IS DIRECTED TO PA Y THE DEMAND AS EARLY AS POSSIBLE. 7. WE FIND THAT THE LEARNED CIT(APPEALS) HAS RESTRI CTED THE LEVY OF PENALTY TO RS.6,37,800 AGAINST RS. 20,50,700 LEVIED BY THE A.O. ON THE BASIS THAT TAX DEFAULT ON THE DATE OF PENALTY IMPOSITION WAS RS.6,37,800 AND THERE WAS SUFFICIENT REASON FOR NOT PAYING TAX IN TIME TH ROUGH TDS ON THE PAYMENT OF RS.4,50,00,000 WHICH WAS HELD UP FROM D.D.A., C. P.W.D. AND UNITY 6 INFRA PROJECTS. CONSIDERING THE REASONS SHOWN, THE LEARNED CIT(APPEALS) HAS ACCEPTED THE SUBMISSIONS OF THE ASSESSEE THAT T HERE WAS REASONABLE CAUSE UNDER SEC. 273B OF THE ACT WHICH PREVENTED THE ASS ESSEE TO FILE THE STATEMENTS BEFORE THE ASSESSING OFFICER. WE THUS FI ND THAT THE FIRST APPELLATE ORDER ON THE ISSUE IS REASONED ONE WHICH DOES NOT N EED ANY INTERFERENCE. THE SAME IS UPHELD. THE GROUND IS ACCORDINGLY REJECTED. 8. IN RESULT, THE GROUND IS REJECTED. 9. THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/03/2015. SD/- SD/- ( PRAMOD KUMAR ) ( I.C. SUDHIR ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31/03/2015 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR 7 DATE DRAFT DICTATED ON COMPUTER 16.03.2015 DRAFT PLACED BEFORE AUTHOR 16.03.2015 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 31.03.2015 KEPT FOR PRONOUNCEMENT ON 31.03.2015 FILE SENT TO THE BENCH CLERK 31.03.2015 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.