KAILASH MAHAL CO. OP HOUSING SOCIETY LTD, MUMBAI V. ADDL CIT (TDS) RG 2, MUMBAI

ITA 1687/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3083 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2011-2012
• Appeal Filed On: 23-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK RIPOTE
• Assessee Lawyers: S C AGARWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO.1687/MUM/2015 (ASSESSMENT YEAR 2010-11) KAILASH MAHAL CO.OP. HSG.LTD., 50, KAILAS MAHAL PEDDER ROAD, CUMBALA HILL, MUMBAI 400 026. PAN:AAABK 0348M ...... APPELLANT VS. THE ADDL. CIT (TDS), RANGE-2, 701, SMT. K.G.MITTAL HOSPITAL, CHARNI ROAD(W), MUMBAI - 400 002 .... RESPONDENT APPELLANT BY : SHRI S.C. AGARWAL RESPONDENT BY : SHRI DEEPAK RIPOTE DATE OF HEARING : 21/07/2016 DATE OF PRONOUNCEMENT : 21/09/2016 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAI NING TO ASSESSMENT YEAR 2011-12 IS DIRECTED AGAINST AN ORD ER PASSED BY CIT(A)- 59 MUMBAI DATED 08/01/2015 WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 272A( 2)(K) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 26/ 12/2011. 2. IN THIS APPEAL, THE POINT OF DISPUTE RELATES TO PENALTY IMPOSED BY THE ASSESSING OFFICER OF RS.49,779/- UNDER SECTION 272A(2)(K) OF THE ACT 2 ITA NO. 1687/MUM/2015 (ASSESSMENT YEAR 2010-11) FOR DELAY IN SUBMISSION OF QUARTERLY STATEMENT OF T DS IN FORM NO.24Q, WHICH WAS REQUIRED TO BE FILED IN TERMS OF SECTION 200(3)R.W.R 31A OF THE INCOME TAX RULES, 1962(IN SHORT THE RULES). IN P ARA 2.1 OF THE ORDER OF THE CIT(A), THE DELAY HAS BEEN ENUMERATED AND AS P ER THE CIT(A) THE NON-COMPLIANCE BY THE ASSESSEE DESERVES TO BE PENAL ISED IN TERMS OF SECTION 272A(2)(K) OF THE ACT . 3. BEFORE US, THE LD. REPRESENTATIVE FOR THE ASSESS EE POINTED OUT THAT THE INSTANT ASSESSMENT YEAR IS THE ONLY YEAR, WHERE ASSESSEE HAD DEFAULTED IN SUBMISSION OF THE QUARTERLY STATEMENT OF TDS AND, IT WAS FURTHER POINTED OUT THAT ASSESSEE HAD INDEED FURNIS HED AN ANNUAL STATEMENT OF TDS. IT WAS, THEREFORE, CONTENDED THA T CONSIDERING THE CIRCUMSTANCES OF THE CASE, PENALTY LEVIED BY THE IN COME TAX AUTHORITIES BE SET-ASIDE. 4. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE HAS DEFENDED THE IMPOSITION OF PENALTY AS PER REASONS A SSIGNED BY THE CIT(A), WHICH WE HAVE ALREADY NOTED ABOVE AND IS NO T BEING REPEATED FOR THE SAKE OF BREVITY. 5. HAVING CONSIDERED THE RIVAL STANDS, IT IS QUITE CLEAR THAT THE PENALTY IN QUESTION IS FOR DELAY IN SUBMISSION OF T HE QUARTERLY STATEMENT OF TDS IN FORM NO.24Q, AND NOT FOR THE COMPLIANCE R EQUIRING DEDUCTION OF TAX AT SOURCE AND DEPOSIT OF THE SAME WITH THE G OVERNMENT TREASURY. AT THE TIME OF HEARING, THE LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IN THE PAST OR IN THE SUBSEQUENT YEARS THE RE WAS NO OCCASION FOR THE ASSESSEE TO DEDUCT TAX AT SOURCE AND IN FAC T, EVEN DURING THE YEAR UNDER CONSIDERATION IT DEDUCTED TAX AT SOURCE ON PAYMENT MADE 3 ITA NO. 1687/MUM/2015 (ASSESSMENT YEAR 2010-11) TO A CONTRACTOR ONLY. FOR THIS REASON, THE ASSESSE E WAS UNDER A BONAFIDE IMPRESSION THAT IT WAS TO FILE ONLY THE AN NUAL STATEMENT OF TDS, WHICH IT DID. IN OUR CONSIDERED OPINION, HAVI NG REGARD TO THE ENTIRE CONSPECTUS OF FACTS AND CIRCUMSTANCES, IN THE PRESE NT CASE, NO PENALTY UNDER SECTION 272A(2)(K) OF THE ACT IS LEVIABLE. I N FACT, A PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW REVEAL THAT NO PART ICULAR JUSTIFICATION IS MADE OUT TO LEVY PENALTY. IT IS A WELL SETTLED PRO POSITION THAT NO PENALTY CAN BE LEVIED MERELY BECAUSE THERE IS A PROVISION I N LAW. THEREFORE, IN OUR VIEW, THE PENALTY LEVIED OF RS. 49,779/-DESERVE S TO BE DELETED. WE HOLD SO. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 21/09/2016 SD/- SD/- (AMARJIT SINGH) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 21/09/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI