Shree Jagdamba Comstruction Company, Nagpur V. ADDL. CIT, (TDS)RANGE 1 &2, Nagpur

ITA 150/NAG/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1793 (ITAT-NAGPUR)
• Duration Of Justice: 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 08-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H WANARE
• Assessee Lawyers: R B PETHE
• Keywords: Reasonable cause

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI RAJENDRA , A M ITA NO S . 150 / N AG / 20 1 2 ( ASSESSMENT YEAR : 20 10 - 11 ) SHREE JAGDAMBA CONSTRUCTION COMPANY, NEW KORADI, NAGPUR - 441 111. VS. ACIT (TDS) , RANGE - 1&2, NAGPUR - 440 001 . PAN/GIR NO. : A A SFS 2731 C ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. R.B.PETHE /REVENUE BY : MR. H.WANARE DATE OF HEARING : 3 1 ST JAN ., 201 3 DATE OF PRONOUNCEMENT : 8 TH FEB. ,201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH IS APPEAL HA S BEEN PREFERRED BY THE ASSESSEE BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAINST THE ORDER OF LEANED CIT (TDS) , RANGE - 1&2 , NAGPUR (MAHARASHTRA) RELATING TO THE ASSESSMENT YEAR 20 10 - 11 , AGAINST THE CONFIRMING THE LEVY OF PENALTY UNDER SECTION 272A(2)(K) /274 , R.W.S. 200(3) OF THE ACT, WHICH HA S BEEN HEARD THROUGH E - COURT, MUMBAI . 2 . THE ASSESSEE IS OBJECTING THE LEVY OF PENALTY OF RS. 1,98,000/ - , WHICH IS CONFIRMED BY THE LEARNED CIT(A) . ITA NO . 150 /20 1 2 2 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY , WHO IS LIABLE TO DEDUCT TAX AND THEREAFTER TO FILE RETURN ON OR BEFORE DUE DATE. THE ITO(TDS) , WARD - 2(1) , NAGPUR, NOTICED THAT THE RETURN FOR QUARTER1 FOR THE FINANCIAL YEAR 2009 - 10 WAS DUE ON 1 5 - 7 - 2009 , 15 - 10 - 2009, 15 - 01 - 2010 AND 15 - 05 - 2010, RESPECTIVELY FOR FOUR QUARTERS. THE AO(TDS) NOTED THAT NO RETURN HAS BEEN FILED AND TAX DEDUCTED BY THE COMPANY WAS OF RS. 1,98,000/ - . THEREAFTER THE AO NOTED THAT THERE IS A DELAY IN DEPOSING THE TAX BY 970 , 880, 790 & 700 DAYS RESPECTIVELY FOR ALL THE QUARTERS. THE AO NOTICED THAT DEDUCTOR COMPANY IN FORM NO. 26Q WITHIN THE TIME PRESCRIBED UNDER SECTION 200(3) OF THE ACT, THEREFORE, PENALTY UNDER SECTION 272A(2)(K) IS LEVIABLE. ACCORDINGLY, HE LEVIED A PENAL TY OF RS. 1,98,000/ - . 4 . LEARNED CIT(A) BY OBSERVING THAT PENALTY CAN BE DROPPED IF THERE IS A REASONABLE CAUSE AS PER SECTION 273()B) , WHICH STATES THAT THE LEGISLATURE INSERTED SECTION 272A(2)(K) BY TAXATION LAWS W.E.F. 10 - 9 - 1986 DIRECTING THAT NO PENALT Y WOULD BE LEVIABLE IF THE ASSESSEE PROVES THAT THERE WAS A REASONABLE CAUSE FOR THE SAID FAILURE. HOWEVER, IN THE PRESENT CASE, SINCE NO ONE ATTENDED BEFORE THE CIT(A ) AND NO REPLY WAS FILED, THEREFORE, HE CONFIRMED THE LEVY OF PENALTY. NOW, THE ASSESSE E IS IN APPEAL HERE BEFORE THE TRIBUNAL. ITA NO . 150 /20 1 2 3 5 . LEARNED COUNSEL OF THE ASSESSEE, WHO APPEARED BEFORE THE TRIBUNAL, STATED THAT TDS RETURN S COULD NOT BE FILED IN ABSENCE OF DEDUCTEE DETAILS, LIKE PAN NO., ADDRESS ETC., RECEIVABLE FROM THE DEDUCTEE . IT WAS FUR THER SUBMITTED THAT THE ASSESSEE HAD PAID TDS OF RS. 1,53,836/ - ALONG WITH THE INTEREST AND THERE IS NO DEFAULT IN TDS. IT WAS FURTHER SUBMITTED THAT THERE WAS NO REVENUE LOSS IS CAUSED TO THE GOVERNMENT, THEREFORE, PENALTY SHOULD NOT BE LEVIED. 6 . ON THE OTHER HAND, LEARNED DR PLACED RELIANCE ON THE ORDER OF CIT(TDS) . 7 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT SINCE THE REASON FOR NOT FILING RETURN WAS THAT NO DETAILS FROM THE DEDUCTEE COULD BE RECEIVED BY THE A SSESSEE. DETAILS OF THE DEDUCTEE LIKE PAN N O AND ADDRESS ALSO , WERE MISSING . IT IS FURTHER SEEN THAT THERE WAS SEVEN DEDUCTOR S OUT OF WHICH ONLY THREE COULD HAVE PROVIDED PAN NUMBER WHILE FOUR OTHER HAVE FILED INCOMPLETE DETAILS, THEREFORE, FOR THIS REASON , RETURN COULD NOT BE FILED. HOWEVER, IT IS SEEN THAT THE AMOUNT OF TDS ALONG WITH INTEREST HAS BEEN PAID BY THE ASSESSEE AND THEREFORE, THERE IS NO LOSS OF REVENUE TO THE DEPARTMENT. IN VARIOUS CASES, IT HAS BEEN HELD THAT IF THE AMOUNT OF TDS IS PAID ALO NG WITH INTEREST THEN AFTER CONSIDERING SUBMISSIONS, ITA NO . 150 /20 1 2 4 SHOWING REASONABLENESS, PENALTY SHOULD NOT BE LEVIED OR CONFIRMED. IN THE PRESENT CASE, SINCE THE ASSESSEE COMPANY COULD NOT FILE THE RETURN IN ABSENCE OF COMPLETE DETAILS, RECEIVABLE FROM THE DEDUCTEE. IT IS FURTHER SEEN THAT AMOUNT OF TDS ALONG WITH INTEREST HAS ALREADY BEEN PAID AND, THEREFORE, THERE IS NO LOSS OF REVENUE TO THE GOVERNMENT. TAKING A LENIENT VIEW, WE ARE OF THE VIEW, THAT PENALTY AT LEAST SHOULD NOT HAVE BEEN IMPOSED AGAINST THE ASSESSE E. ACCORDINGLY, WE CANCEL THE LEVY OF PENALTY OF RS. 1,98,000/ - . 8 . IN THE RESULT , APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE E - COURT ON THIS 8 TH DAY OF FEB , 201 3 . - 201 3 SD/ - SD/ - ( ) ( RAJENDRA ) ( ) ( R .K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 0 8 / 02 / 201 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR, ITAT, MUMBAI / NAGPUR . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI