Dhanaji Nana Chaudhari Vidya Prabodhini, Jalgaon V. Joint Commissioner of Income-tax,

ITA 1748/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0846 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-11-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 17-08-2016
• 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. 17 48 /P U N/201 6 / ASSESSMENT YEAR : 20 11 - 12 DHANAJI NANA CHAUDHARI VIDYA PRABODHINI 2 ND FLOOR, OLD B J MARKET, JALGAON 425001 . / APPELLANT PAN /TAN: NSKDO2413F VS. THE JT . COMMISSIONER OF INCOME TAX - TDS , NASHIK . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : MS. SABHANA PARVEEN / DATE OF HEARING : 2 7 . 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 9 . 06 .201 6 RELATING TO ASSESSMENT YEAR 20 11 - 12 AGAINST LEVY OF PENALTY UNDER SECTION 272A(2)(K) R.W.S. 200(3) OF THE INCOME - TAX ACT , 196 1 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: - 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING PENALTY U/S 272A(2)(K) OF RS.52,175/ - FOR LATE FILING OF TDS RETURNS WITHOUT APPRECIATING THAT THE APPELLANT WAS PREVENTED FROM REASONABLE CAUSE FOR NOT FILING THE RETURNS IN TIME. IT A NO. 17 48 /P U N/20 1 6 DHANAJI NANA CHAUDHARI VIDYA PRABODHINI 2 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THIS WAS THE FIRST YEAR IN WHICH THE TDS PROVISIONS BECAME APPLICABLE TO THE APPELLANT AND THERE WAS IGNORANCE AS TO THE PROCEDURE OF L AW IN THE CONTEXT OF TDS PROVISIONS. 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. HOWEVER, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY VARIOUS ORDERS OF PUNE BENCH OF TRIBUNAL . HENCE , WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 4. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FILED TDS RETURNS IN FORM NO.26Q AFTER THE TIME LIMIT PRESCRIBED UNDER SECTION 200(3) O F THE ACT. THE ASSESSING OFFICER HELD THE ASSESSEE TO BE IN DEFAULT AND LEVIED PENALTY OF 57,675 / - . 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 P ENALTY. 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 ALSO 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 A SSESSEE 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 & IT A NO. 17 48 /P U N/20 1 6 DHANAJI NANA CHAUDHARI VIDYA PRABODHINI 3 5557/MUM/2009, RELATING TO ASSESSMENT YEARS 2006 - 07 AND 2007 - 08, ORDER DATED 18.03.2011. 6. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE ISSUE STANDS SQUARELY COVERED AGAINST THE ASSESSEE BY THE ORDER OF PUNE BENCH OF TRIBUNAL IN SERIE S 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 . 8 . ON GOING THROUGH THE RECORDS, T HE LIMITED ISSUE WHICH ARISES IN THE PRESENT APPEAL IS THE PENA LTY 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. 9 . WE FIND THAT SIMILAR ISSUE HAS BEEN DECIDED BY THE PUNE BENCH OF TRIBUNAL IN BUNCH OF APPEALS WI TH 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 DEPOSITING THE TAX DEDUCTED AT SOU RCE 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 SINCE E - TDS STATEMENTS CANNO T BE FILED WITHOUT PAYMENT OF TDS TO THE CREDIT OF CENTRAL GOVERNMENT. SIMILAR RATIO HAS BEEN LAID DOWN BY THE CHANDIGARH BENCH OF TRIBUNAL IN M/S. ASHIRWAD IT A NO. 17 48 /P U N/20 1 6 DHANAJI NANA CHAUDHARI VIDYA PRABODHINI 4 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 S OF APPEAL RAISED BY THE ASSESSEE ARE THUS, DISMISSED. 1 0 . IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF NOVEMBER , 201 8 . SD/ - SD/ - ( D.KARUNAKARA RAO ) (SUSHMA 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