Ramdayal Hanumandas Soni, Nashik V. Deputy Commissioner of Income-tax,

ITA 1711/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0847 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 09-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SABHANA PARVEEN
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO , AM . / IT A NO. 1711 /P U N/201 6 / ASSESSMENT YEAR : 20 11 - 12 RAMDAYAL HANUMANDAS SONI M/S. RAMDAYAL HANUMANDAS SONI TILAK MAIDAN, YEOLA, NASHIK 423401 . / APPELLANT PAN: A ABFR7037B VS. THE DY . COMMISSIONER OF INCOME TAX, CIRCLE, MALEGAON . / RESPONDENT / APPELLANT BY : SHRI PRAMOD SHINGTE / RESPONDENT BY : MS. SABHANA PARVEEN / DATE OF HEARING : 26 . 1 1 .201 8 / DATE OF PRONOUNCEMENT: 30 . 1 1 .201 8 / ORDER PER SUSHMA CHOWLA, J M : TH E APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 3 , NASHIK , DATED 0 8 . 06 .201 6 RELATING TO ASSESSMENT YEAR 20 11 - 12 AGAINST LEVY OF PENALTY UNDER SECTION 272A(2)(K) R.W.S. 200(3) O F THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL: - IT A NO. 1711 /P U N/20 1 6 RAMDAYAL HANUMANDAS SONI 2 1. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, EVIDENCES ON RECORD, SUBMISSIONS MADE, THE PROVISIONS OF LAW AND THE JUDICIAL DECISIONS, TH E LEARNED CIT(APPEALS) ERRED IN NOT CANCELLING THE ENTIRE PENALTY LEVIED U/S 272A(2)(K) R.W.S. 200(3). THEREFORE, IT IS PRAYED TO CANCEL THE PENALTY U/S 272A(2)(K) R.W.S. 200(3) RETAINED AT RS.98,400/ - , BY THE LEARNED CIT(A). 3. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST RESTRICTION OF PENALTY LEVIED UNDER SECTION 272A(2)(K) R.W.S. 200(3) OF THE ACT AT 98,400/ - . 4. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FILED TDS RETURNS IN FORM NOS.24Q AND 26Q AFTER THE TIME LIMIT PRESCRIBED U NDER SECTION 200(3) OF THE ACT. THE ASSESSING OFFICER HELD THE ASSESSEE TO BE IN DEFAULT AND LEVIED PENALTY OF 1,46,248/ - . 5. BEFORE THE CIT(A), THE ASSESSEE EXPLAINED THAT IT HAD REASONABLE CAUSE FOR NOT FILING TDS RETURNS IN TIME AND HENCE, THERE WAS NO MERIT IN LEVYING PENALTY. IT WAS ALSO POINTED OUT THAT THE ASSESSEE HAD DEDUCTED AND PAID TAXES AND ALSO FILED RETURNS OF TDS, HENCE THERE WAS NO MALAFIDE INTENTION IN NOT FILING THE SAID RETURNS WITHIN TIME. THE CIT(A) OBSERVED THAT THE ASSESSEE ALS O EXPLAINED THE REASON FOR NOT PAYING TAXES IN TIME. THE CIT(A) HELD THAT SINCE THE ASSESSEE HAD EXPLAINED THE DELAY IN PAYMENT OF TAX SATISFACTORILY, THEN PENALTY UNDER SECTION 272A(2)(K) OF THE ACT WAS TO BE RESTRICTED BUT FOR THE DELAY FROM THE DATE OF PAYMENT OF TAXES BY ASSESSEE TILL THE DATE OF FILING TDS RETURNS. IN THIS REGARD, RELIANCE WAS PLACED ON THE DECISION OF MUMBAI BENCH OF TRIBUNAL IN M/S. PORWAL CREATIVE VISION PVT. LTD. IN ITA NOS.5556 & 5557/MUM/2009, RELATING TO ASSESSMENT YEARS 2006 - 07 AND 2007 - 08, ORDER DATED 18.03.2011 . IT A NO. 1711 /P U N/20 1 6 RAMDAYAL HANUMANDAS SONI 3 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FAIRLY ADMITTED THAT THE ISSUE IS DECIDED AGAINST THE ASSESSEE BY THE ORDER OF PUNE BENCH OF TRIBU NAL IN SERIES OF CASES WITH LEAD ORDER IN NAV MAHARASHTRA VIDYALAYA VS. ADDL.CIT(TDS) IN ITA NO.832/PN/2016, RELATING TO ASSESSMENT YEAR 2011 - 12, ORDER DATED 07.10.2016, WHEREIN ALSO THE TRIBUNAL HELD THAT PENALTY UNDER SECTION 272A(2)(K) OF THE ACT IS TO BE RESTRICTED AS APPLIED BY THE CIT(A). 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE LIMITED ISSUE WHICH ARISES IN THE P RESENT APPEAL IS THE PENALTY LEVIED UNDER SECTION 272A(2)(K) OF THE ACT IN RESPECT OF PARTIAL DEFAULT I.E. FROM THE DATE OF PAYMENT OF TDS TO THE DATE OF FILING E - TDS STATEMENTS. 10. WE FIND THAT SIMILAR ISSUE HAS BEEN DECIDED BY THE PUNE BENCH OF TRIBU NAL IN BUNCH OF APPEALS WITH LEAD ORDER IN NAV MAHARASHTRA VIDYALAYA VS. ADDL.CIT(TDS) (SUPRA), WHEREIN THE TRIBUNAL HELD THAT IF THERE IS REASONABLE CAUSE FOR THE DEFAULT, THEN PENALTY IS NOT TO BE LEVIED. WHERE THE ASSESSEE HAD DEFAULTED IN NOT DEPOSITI NG THE TAX DEDUCTED AT SOURCE IN TIME, THEN IN SUCH CASES, THE RETURNS WERE DELAYED AND PENALTY UNDER SECTION 272A(2)(K) OF THE ACT IS LEVIABLE ; H OWEVER, THE SAME IS TO BE RESTRICTED F R OM THE DATE OF PAYMENT OF TDS TO THE DATE OF FILING E - TDS STATEMENTS SI NCE E - TDS STATEMENTS CANNOT BE FILED WITHOUT PAYMENT OF TDS TO THE CREDIT OF CENTRAL GOVERNMENT. SIMILAR IT A NO. 1711 /P U N/20 1 6 RAMDAYAL HANUMANDAS SONI 4 RATIO HAS BEEN LAID DOWN BY THE CHANDIGARH BENCH OF TRIBUNAL IN M/S. ASHIRWAD COMPLEX VS. JCIT (TDS) IN ITA NO.895/CHD/2013, RELATING TO ASSESSMENT YEAR 2010 - 11, ORDER DATED 22.11.2013 . FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE ORDER OF CIT(A) IN RESTRICTING LEVY OF PENALTY UNDER SECTION 272A(2)(K) OF THE ACT. THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS THUS, DISMISSED. 11 . IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF NOVEMBER , 201 8 . SD/ - SD/ - ( D.KARUNAKARA RAO ) (SUSHM A CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 30 TH NOVEMBER , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 3 , NASHIK ; 4. THE CIT (TDS) , PUNE ; 5. 6. , , / DR A , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE