ADDL CIT (TDS) RG 3, MUMBAI V. SMOKEIN JOES PIZZA P. TD, MUMBAI

ITA 1793/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8757 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 08-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMARD EEP
• Assessee Lawyers: J D MISTRY
• Keywords: TDS
• Section: 273B; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI. V. DURGA RAO,JUDICIAL MEMBER. I.T.A. NO. 1793/MUM/2010. ASSESSMENT YEAR : 20006-07. DY. COMMISSIONER OF INCOME-TAX, S MOKEN JOES PIZZA P. LTD., (TDS), RANGE-3, MUMBAI. VS. 20, MARU ASHISH, NEPEAN SEA ROAD, MUMBAI 400 036. PAN AAGCS 2411Q. APPELLANT BY : SHRI AMARDEEP.. RESPONDENT BY : SHRI J.D. MISTRY. O R D E R PER J. SUDHAKAR REDDY, A.M. : THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AG AINST THE ORDER OF THE CIT(APPEALS)-14, MUMBAI DATED 30-12-2009 FOR THE A SSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN CANCELLING THE PENALTY LEVIED U/S 2 72A(2)(C) OF THE I.T. ACT AND IN INVOKING SECTION 273B BY HOLDING A REASO NABLE CAUSE OF FAILURE ON THE GROUND THAT DELAY IN FILING OF THE R ETURN WAS MAINLY DUE TO UNAWARENESS OF TECHNICAL APPLICATION OF ELECTRONIC FILING OF RETURN ON PART OF THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN APPLYING AND INVOKING SECTION 273B OF IT ACT 1961 ON THE GROUND THAT IT IS THE FIRST DEFAULT OF THE ASSE SSEE ON ACCOUNT OF UNAWARENESS ABOUT ELECTRONIC FILING WHEREAS, IT IS SEEN THAT THE ASSESSEE IS HABITUAL DEFAULTER FOR SUBSEQUENT ASSESSMENT YEARS. 2 2. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT TH E ASSESSEE HAD REGULARLY DEDUCTED TAX AT SOURCE AND HAD ALSO DEPOSITED THE S AME IN TIME TO THE GOVERNMENT. IT IS ONLY DUE TO THE ILLNESS OF THE ACCOUNTANT AND THE SUDDEN DEATH OF HIS BROTHER, THERE WAS A DELAY IN FILING OF THE TDS RETURN. THE CIT(APPEALS) HAS ALSO RECORDED THAT ULTIMATELY THE ASSESSEE HAD FILED THE TDS RETU RNS SUO MOTU, VOLUNTARILY AND IT IS NOT FILED IN RESPONSE TO A NOTICE ISSUED BY THE DEPARTMENT. HE OBSERVED THAT THERE IS NO REVENUE LOSS. THUS HE DELETED THE PENAL TY. 3. IN OUR CONSIDERED VIEW, THE EXPLANATION OF THE A SSESSEE WAS BONAFIDE AND IN OUR OPINION, THE ASSESSEE WAS PREVENTED BY REASONAB LE CAUSE IN FILING THE RETURN IN TIME. THUS, WE UPHOLD THE ORDER OF THE FIRST APPELL ATE AUTHORITY DELETING THE PENALTY LEVIED AND DISMISS THIS APPEAL OF THE REVENUE. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JANUARY , 2011. SD/- SD/- (V. DURGA RAO)) (J. SUDHAK AR REDDY) JUDICIAL MEMBER. A CCOUNTANT MEMBER MUMBAI, DATED: 28 TH JANUARY, 2011. WAKODE 3 COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, D-BENCH (TRUE COPY) BY ORDER ASSTT. REGISTRA R, ITAT, MUMBAI BENCHES, MUMBAI.