M/S WORLD TRADE PARK LIMITED, JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX (TDS), JAIPUR

ITA 170/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3678 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 07-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DHK
• Keywords: Reasonable cause; TDS
• Section: 273B; 27

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 170,171,172 & 173/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 (26Q:1ST TO 4TH QTR) M/S WORLD TRADE PARK LIMITED (FORMERLY KNOWN AS R.F. PROPERTIES & TRADING LTD.) WORLD TRADE PARK J.L.N. MARG, JAIPUR CUKE VS. ACIT TDS JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.: JPRR04161D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ASHISH SHARMA (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM RAI (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/06/2018 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT: 14/06/2018. VKNS'K@ ORDER PER BENCH: THESE ARE FOUR APPEALS FILED BY THE ASSESSEE AGAINS T THE LEVY OF PENALTY U/S 271H FOR EACH OF THE FOUR QUARTERS OF FY 2012-1 3 RELEVANT TO AY 2013-14. SINCE COMMON ISSUE REGARDING LEVY OF PENALTY U/S 27 1H IS INVOLVED, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HERE IS A DELAY IN FILING OF QUARTERLY RETURNS OF TDS IN PRESCRIBED FORM NO. 26Q FOR EACH OF THE FOUR QUARTERS OF THE FY 2012-13 AS REQUIRED 200(3) OF TH E ACT. IN THIS REGARD, A SHOW CAUSE WAS ISSUED TO THE ASSESSEE U/S 271H DATE D 04.06.2015. IN ITA NO. 170-173/JP/2018 M/S WORLD TRADE PARK LIMITED, JAIPUR VS ACIT, TDS , JAIPUR 2 RESPONSE, THE ASSESSEE HAS SUBMITTED THAT DELAY IN FILING OF TDS QUARTERLY STATEMENTS HAS HAPPENED DUE TO NON-DEPOSITING OF TA XES AT SOURCE. AS PER THE ASSESSING OFFICER, THE SAID CONTENTION OF THE A SSESSEE CANNOT BE ACCEPTED AS THE ASSESSEE IS NOT FILING THE QUARTERLY TDS STA TEMENTS EVEN AFTER DEPOSITING OF THE TAXES AND SINCE THERE IS DELAY IN FILING THE STATEMENT THE PROVISIONS OF SECTION 271H ARE ATTRACTED AND HE THE REFORE, LEVIED THE PENALTY OF RS. 20,000/- FOR EACH OF THE 4 QUARTERS. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) AND THE RELEVANT FINDING OF THE LD. CIT( A) ARE CONTAINED AT PARA 4.3 OF HIS ORDER WHICH IS REPRODUCED AS UNDER:- 4.3 I HAVE CAREFULLY CONSIDERED THE MATERIAL BEFOR E ME. I FIND THAT THE ASSESSING OFFICER IMPOSED PENALTY U/S 271H OF THE I .T. ACT MAKING OBSERVATION THAT IT COULD NOT FILE STATEMENT SINCE HE HAD NOT DEPOSITED TAX IS NOT ACCEPTABLE, SINCE THE ASSESSEE IS NOT TILING ST ATEMENT EVEN AFTER DEPOSITING TAX. AS PROVISIONS OF IT ACT THE ASSESSE E IS REQUIRED TO DEDUCT & DEPOSIT TAX IN TIME AND ALSO FILE ITS STATEMENTS ON TIME. SINCE THE ASSESSEE HAS NOT DEPOSITED THE STATEMENT ON TIME, THE PROVISIONS OF SECTION 271H ARE ATTRACTED. THE AR OF THE APPELLANT SUBMITTED THAT THE ASSESSE E COMPANY CONSTRUCTED A PRESTIGIOUS COMMERCIAL BUILDING COMPL EX KNOWN AS WORLD TRADE PARK, JLN MARG, JAIPUR. HOWEVER DUE TO GREAT RECESS ION IN PROPERTY MARKET THE SPACES IN SAID COMMERCIAL COMPLEX COULD NOT BE SOLD AND INVESTMENT MADE BY ASSESSEE GOT LOCKED AND THIS RESULTED IN GR EAT BURDEN OF BANK LOAN AND TRADE CREDITORS. THE COMPANY LEFT WITH VERY AVA ILABILITY OF CASH AND, THEREFORE THE TDS DEDUCTED BY ASSESSEE COULD NOT BE PAID IN TIME THE QUARTERLY TDS RETURN IN FORM 24Q AND 26Q COULD NOT BE FILED WITHIN ALLOWED TIME. THE ASSESSEE BESIDES PAY TAX INTEREST AND ALS O PAID LATE FILING FEES U/S 234E. ITA NO. 170-173/JP/2018 M/S WORLD TRADE PARK LIMITED, JAIPUR VS ACIT, TDS , JAIPUR 3 THUS ON THESE FACTS OF THE CASE THE ASSESSEE PREVE NTED WITH REASONABLE CAUSE AND THEREFORE NO PENALTY U/S 271H R/W SECTION 273B SHOULD HAVE BEEN LEVIED. THE ASSESSEE THEREFORE, PRAYS THAT PENALTY LEVIED FOR EACH QR. SEPARATELY FOR LATE FILING OF FORM 24Q AND 26Q (EIG HT PENALTIES OF RS. 20,000/- EACH) MAY KINDLY BE DELETED. WITHOUT PREJUDICE TO ABOVE THE ASSESSEE PRAYS THAT RELIEF AVAILABLE U/S 271H (2) MAY KINDLY BE GRANTED. THE LD. AO IMPOSED PENALTY OF RS. 20,000/- IN EACH QR. SEPARATELY FOR FORM 24Q AND 26Q. WHILE AS PER SECTION 271H (1) THE MINIMUM PENALTY LEVIABLE IS ONLY RS. 10,000/-. THE ASSESSEE HAVING DEPOSITED TAX, INTEREST AND FEES AND AS STATED ABOV E PREVENTED WITH SUFFICIENT CAUSE IN FILING THESE RETURNS AND SO IT PRAYS THAT IT SHOULD NOT BE VISITED WITH A PENALTY OF MORE THAN MINIMUM. IT IS THEREFORE, PRAY ED THAN PENALTY IN EACH CASE MAY KINDLY BE REDUCED TO MINIMUM OF RS. 10,000 /- ONLY. I PERUSED THE RECORD I FIND THAT THE APPELLANT FAI LED TO FILE ANY GENUINENESS CAUSE WHICH PREVENT TO APPELLANT TO FIL E THE QUARTERLY RETURN IN TIME. THEREFORE THE PENALTY IMPOSED BY THE ACIT TDS U/S 271H(2) OF THE I.T. ACT. THE MINIMUM PENALTY AS PER SECTION 271H(2) IS RS. 10,000/-. SINCE THE APPELLANT HAVING DEPOSITED TAX, INTEREST AND FEES I T IS REASONABLE TO RESTRICT A MINIMUM PENALTY OF RS. 10,000/- U/S 271H OF THE I.T . ACT. ACCORDINGLY, I CONFIRM PENALTY OF RS. 10,000/- AND BALANCE OF RS. 10,000/- IS CANCELLED. THIS GROUND IS PARTLY ALLOWED. 4. NOW, THE ASSESSEE IS IN APPEAL AGAINST THE CONFI RMATION OF PENALTY TO THE TUNE OF RS 10,000 FOR EACH OF THE FOUR QUARTERS U/S 271H OF THE ACT. DURING THE COURSE OF HEARING, THE LD. AR HAS SUBMIT TED THAT THE ASSESSEE HAD A GENUINE REASON FOR THE DELAY IN FILING QUARTERLY RETURN AS THE ASSESSEE WAS FACING FINANCIAL HARDSHIP AND WHICH RESULTED IN DEL AY IN DEPOSIT OF TAX AND CONSEQUENT DELAY IN FILING THE FORM 26Q AND IT WAS ACCORDINGLY SUBMITTED THAT THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE AND PENALTY SO LEVIED BY THE AO AND CONFIRMED BY THE LD CIT(A) MAY KINDLY BE DEL ETED. ITA NO. 170-173/JP/2018 M/S WORLD TRADE PARK LIMITED, JAIPUR VS ACIT, TDS , JAIPUR 4 5. THE LD DR IS HEARD WHO HAS RELIED ON THE FINDING S OF THE LOWER AUTHORITIES. IT WAS SUBMITTED BY THE LD DR THAT TH E LD CIT(A) HAS ALREADY REDUCED THE PENALTY FROM RS 20,000 TO RS 10,000 FOR EACH OF THE QUARTERS, BEING THE MINIMUM PENALTY LEVIABLE UNDER SECTION 27 1H OF THE ACT. IT WAS FURTHER SUBMITTED THAT THE CONTENTION OF THE LD AR REGARDING FINANCIAL HARDSHIP CANNOT BE ACCEPTED ONCE THE TAXES HAVE BEEN DEPOSIT ED. IT WAS FURTHER SUBMITTED THAT THERE IS NO REASONABLE CAUSE WHICH H AS BEEN DEMONSTRATED THROUGH VERIFIABLE EVIDENCE REGARDING THE DELAY IN FILING OF QUARTERLY STATEMENTS EVEN AFTER THE TAXES HAVE BEEN DEPOSITED . IT WAS ACCORDINGLY SUBMITTED THAT THE ORDER OF THE LD CIT(A) MAY KINDL Y BE CONFIRMED. 6. IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS, W E REFER TO THE PROVISIONS OF SECTION 271H WHICH READS AS UNDER:- 271H (1) WITHOUT PREJUDICE TO THE PROVISIONS OF T HE ACT, THE ASSESSING OFFICER MAY DIRECT THAT A PERSON SHALL PAY BY WAY O F PENALTY, IF, HE (A) FAILS TO DELIVER OR CAUSE TO BE DELIVERED A S TATEMENT WITHIN THE TIME PRESCRIBED IN SUB-SECTION (3) OF SECTION 200 O R THE PROVISO TO SUB-SECTION (3) OF SECTION 206C; OR (B) FURNISHES INCORRECT INFORMATION IN THE STATEME NT WHICH IS REQUIRED TO BE DELIVERED OR CAUSE TO BE DELIVERED UNDER SUB- SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SE CTION 206C. (2) THE PENALTY REFERRED TO IN SUB-SECTION (1) SHAL L BE A SUM WHICH SHALL NOT BE LESS THAN TEN THOUSAND RUPEES BUT WHICH MAY EXTEND TO ONE LAKH RUPEES. (3) NOTWITHSTANDING ANYTHING CONTAINED IN THE FOREG OING PROVISIONS OF THIS SECTION, NO PENALTY SHALL BE LEVIED FOR THE FAILURE REFERRED TO IN CLAUSE (A) OF SUB-SECTION (1), IF THE PERSON PROVES THAT AFTER PAYING TAX DEDUCTED OR COLLECTED ALONG WITH THE FEE AND INTEREST, IF ANY, TO THE CREDIT OF THE ITA NO. 170-173/JP/2018 M/S WORLD TRADE PARK LIMITED, JAIPUR VS ACIT, TDS , JAIPUR 5 CENTRAL GOVERNMENT, HE HAD DELIVERED OR CAUSE TO BE DELIVERED THE STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C BEFORE THE EXPIRY O F A PERIOD OF ONE YEAR FROM THE TIME PRESCRIBED FOR DELIVERING OR CAUSING TO BE DELIVERED SUCH STATEMENT. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY TO A STATEMENT REFERRED TO IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SU B-SECTION (3) OF SECTION 206C WHICH IS TO BE DELIVERED OR CAUSED TO BE DELIV ERED FOR TAX DEDUCTED AT SOURCE OR TAX COLLECTED AT SOURCE, AS THE CASE M AY BE, ON OR AFTER THE 1ST DAY OF JULY, 2012.' 7. ON PERUSAL OF THE ORDER OF THE LD. CIT(A), THE FACTUAL MATRIX REGARDING THE DELAY IN FILING THE QUARTERLY RETURN IS AS UNDER: ORDER U/S 271H /DCR NO. FOR DELAY IN DUE DATE OF FILING QUARTERLY RETURN DATE OF FILING PERIOD OF DELAY IN DAYS, AS MENTIONED IN THE ORDER U/S 271H REMARKS 5/51 Q4-26Q 31/05/2013 02/12/2014 185 - 6/51 Q3-26Q 15/01/2013 02/12/2014 321 - 7/51 Q2-26Q 15/10/2012 02/12/2014 413 - 8/51 Q1-26Q 15/07/2012 02/12/2014 140 - 8. ON PERUSAL OF THE ABOVE FACTUAL MATRIX, WE FIND THAT IN ONE CASE, THERE IS DELAY IN FILING OF QUARTERLY STATEMENT OF MORE T HAN 365 DAYS AND IN REST THREE CASES, THE DELAY IS LESS THAN 365 DAYS FROM T HE DUE DATE OF FILING ITA NO. 170-173/JP/2018 M/S WORLD TRADE PARK LIMITED, JAIPUR VS ACIT, TDS , JAIPUR 6 QUARTERLY TDS STATEMENT. AS PER THE SUB-SECTION 3 OF SECTION 271H, WHERE THE ASSESSEE AFTER PAYING THE TAXES ALONG WITH FEE AND INTEREST, IF ANY, DELIVER THE STATEMENT BEFORE THE PERIOD OF 1 YEAR FROM THE PRESCRIBED DUE DATE OF FILING OF SUCH STATEMENT, NO PENALTY SHALL BE LEVIE D FOR THE DELAY IN FILING THE PRESCRIBED STATEMENT. IN THE RESULT, THE PENALTY L EVIED IN 3 CASES IS HEREBY DIRECTED TO BE DELETED SUBJECT TO VERIFICATION OF P AYMENT OF TAXES ALONG WITH FEE AND INTEREST. THE PENALTY FOR THE 2 ND QUARTER WHEREIN THERE IS DELAY OF MORE THAN 365 DAYS, THE PROVISIONS OF SECTION 271H( 3) DOESNT COME TO THE RESCUE OF THE ASSESSEE AND THERE IS NO REASONABLE C AUSE WHICH HAS BEEN DEMONSTRATED FOR THE DELAY IN FILING OF TDS STATEME NT AND HENCE, THE PENALTY SO CONFIRMED BY THE LD. CIT(A) AT RS. 10,000/- IS H EREBY CONFIRMED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/06/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 14/06/2018 *GANESH KR. VKNS'K DH IZFRFYFI VXZSF'KR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT - M/S WORLD TRADE PARK LIMITED, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT - ACIT, TDS, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR ITA NO. 170-173/JP/2018 M/S WORLD TRADE PARK LIMITED, JAIPUR VS ACIT, TDS , JAIPUR 7 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 170-173/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.